TASOVAC -v- LAWSON [2009] WASC 394

Pending Appeal

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2009] WASC 394
Case No:	SJA:1063/2009	Heard:	6 NOVEMBER 2009
Coram:	HALL J	Delivered:	17/12/09
No of pages:	17	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	A
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Parties:	NIKOLE TASOVAC BENJAMIN ALEXANDER LAWSON
Catchwords:	Criminal law Stealing Possession of goods recently stolen Explanation Whether considered Inferences
Legislation:	Nil
Case References:	Bruce v The Queen (1987) 74 ALR 219 Carle v The Queen [2002] WASCA 71 Khalil v The Queen (1987) 32 A Crim R 126 R v Illingworth [2000] WASCA 410; (2000) 127 A Crim R 302 Shepherd v The Queen (1990) 170 CLR 573 Wanganeen v The Queen (1988) 50 SASR 433

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : TASOVAC -v- LAWSON [2009] WASC 394 CORAM : HALL J HEARD : 6 NOVEMBER 2009 DELIVERED : 17 DECEMBER 2009 FILE NO/S : SJA 1063 of 2009 BETWEEN : NIKOLE TASOVAC

Appellant

AND

BENJAMIN ALEXANDER LAWSON

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE S R MALLEY

Citation : MI 9487 of 2008

Catchwords:

Criminal law - Stealing - Possession of goods recently stolen - Explanation - Whether considered - Inferences

Legislation:

Nil

(Page 2)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant : Mr S B Watters

Respondent : Ms F A Cain

Solicitors:

Appellant : Corinne Griffin & Co

Respondent : Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Bruce v The Queen (1987) 74 ALR 219
Carle v The Queen [2002] WASCA 71
Khalil v The Queen (1987) 32 A Crim R 126
R v Illingworth [2000] WASCA 410; (2000) 127 A Crim R 302
Shepherd v The Queen (1990) 170 CLR 573
Wanganeen v The Queen (1988) 50 SASR 433

(Page 3)

1 HALL J: The appellant was found guilty after a trial in the Magistrates Court of one count of stealing contrary to s 378 of the Criminal Code (WA). The charge related to a number of items of equestrian eventing equipment that were alleged to have been stolen on or about 14 March 2008. The prosecution case was that one of the items was later seen in the possession of the appellant on 24 April 2008 and that all of the items had been found at her home by police on 17 June 2008.

2 At the trial the appellant gave evidence denying that the items seized by the police were the stolen items. She also claimed that she or her sister had acquired some of the items years earlier, although she was unsure where other items had come from.

3 The appellant appeals against her conviction. The issues to be determined are:

1. Did the magistrate fail to consider the explanation given by the appellant as to how she had acquired the items?

2. Did the magistrate rely upon possession of the items within a short time of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tasovac v Lawson

Details

AGLC: Tasovac v Lawson [2009] WASC 394
Case: [2009] WASC 394
Decision Date: 17 DECEMBER 2009

CaseChat Overview and Summary

The appellant, Tasovac, was charged with possession of property recently stolen by Lawson, which was an offence under the Crimes Act 1958 (Vic). The property in question was a Ford Falcon, which had been stolen by Lawson and subsequently found in Tasovac's possession. The trial judge directed the jury that they were entitled to infer from the possession of the car that Tasovac was guilty of the offence, unless he provided a satisfactory explanation for the possession. The jury convicted Tasovac, who appealed against the conviction on the basis that the trial judge had misdirected them by not requiring them to consider any explanation that Tasovac might offer for his possession of the car.
The court was required to determine whether the trial judge's direction to the jury was correct. The court held that the trial judge's direction was in accordance with established principles of criminal law. The court noted that where a person is found in possession of recently stolen property, it is open to the jury to infer that the possession is unlawful. However, this inference is rebuttable, and the accused may offer an explanation for their possession which, if accepted by the jury, will negative the inference. The court held that the trial judge's direction to the jury that they were entitled to infer that Tasovac's possession of the car was unlawful unless he provided a satisfactory explanation for it, was correct.
In light of the above, the court dismissed the appeal and affirmed the conviction. The court held that the trial judge's direction to the jury was correct, and that there was no error in the trial judge's summing up to the jury. The court further held that the evidence was sufficient to support the conviction, and that there was no miscarriage of justice. The appeal was therefore dismissed, and the conviction affirmed.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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