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Welch v Dao

Welch v Dao

Case [2019] WASC 115 5 April 2019

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   WELCH -v- DAO [2019] WASC 115
CORAM:   ACTING JUSTICE STRK
HEARD:   29 MARCH 2019
DELIVERED          :   29 MARCH 2019
PUBLISHED           :   5 APRIL 2019
FILE NO/S:   SJA 1015 of 2018
BETWEEN:   VERINIA ELIZABETH WELCH
Appellant
AND
CAM DUY DAO
Respondent

ON APPEAL FROM:
For File No:   SJA 1015 of 2018
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G R SMITH
File Number            :   PE 3613 of 2016

Catchwords:

Criminal law - Appeal against the decision to acquit the respondent on the charge of possessing stolen or unlawfully obtained property - Whether a conviction for an offence of possessing stolen or unlawfully obtained property is precluded if the evidence establishes that the property in question was, in fact, stolen - Criminal Code s 417(1)

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Code Amendment (Unlawful Possession) Act 2014 (WA)
Criminal Law Amendment (Simple Offences) Act 2004 (WA)
Criminal Procedure Rules 2005 (WA)
Police Act 1892 (WA)
Sentencing Act 2005 (WA)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	M M Yeung
Respondent	:	No appearance

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	No appearance

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

Birch v Binnenkamp [2018] WASC 58
Caratti v Potts [2015] WASC 86
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Henderson v Surfield & Carter [1927] SASR 192
Holmes v Thorpe [1925] SASR 286
Hoskins v Ramsden [2008] WASC 28
Hoskins v Ramsden [2008] WASCA 139
Hoskins v Ramsden [No 2] [2009] WASCA 90
Le v Feakes [2018] WASC 331
Lenthall v Newman [1932] SASR 126
Mabbott v The Queen [1990] WAR 323; (1989) 40 A Crim R 243
Marzano v Procopis [2009] WASC 332
McLennan v Campbell [2003] WASCA 145
Moodie v The Queen (1952) 54 WALR 80
O'Brien v Reitze [1972] WAR 152
Ollerton v The Queen (1989) 40 A Crim R 133
Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1996) 115 CLR 266
R v Chan (1992) 28 NSWLR 421; (1992) 63 A Crim R 242
R v Grace (1930) 30 SR (NSW) 158
Raynal v Samuels (1974) 9 SASR 264
Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612
Ryan v Dimitrovski (1996) 16 WAR 457
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
Whittle v Brown [2011] WASC 143
Wicks v Marsh [1993] 2 Qd R 583; (1993) 67 A Crim R 71

ACTING JUSTICE STRK:

(This judgment was delivered extemporaneously on 29 March 2019 and has been edited to correct matters of grammar and so as to include complete references in the form of footnotes).

Introduction

On 7 February 2018, the respondent appeared in the Perth Magistrates Court on a total of five charges:
(1)PE 3613 of 2016 – possession of a white metal brooch which was reasonably suspected to be stolen or unlawfully obtained contrary to…

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 Welch v Dao

Details

AGLC: Welch v Dao [2019] WASC 331
Case: [2019] WASC 115
Decision Date: 5 APRIL 2019

CaseChat Overview and Summary

The appeal in Welch v Dao concerns the respondent's acquittal on a charge of possessing stolen or unlawfully obtained property. The trial judge found that the prosecution had failed to prove the property was stolen or unlawfully obtained, as required by section 417(1) of the Criminal Code. The appellant, who brought the appeal, argued that the respondent's conviction should stand, regardless of whether the property was stolen or unlawfully obtained. The central legal issue was whether a conviction under section 417(1) of the Criminal Code can proceed if the property in question is determined to be stolen.

The court considered the statutory language of section 417(1), which stipulates that the prosecution must prove the property was stolen or unlawfully obtained. The court found that the requirement of proving the property was stolen or unlawfully obtained is fundamental to the offence. The trial judge's finding that the prosecution failed to meet this burden meant that the respondent could not be convicted of possessing stolen or unlawfully obtained property. The court rejected the appellant's argument, confirming that the prosecution's failure to prove the property was stolen or unlawfully obtained precluded a conviction under section 417(1) of the Criminal Code.

The court held that the respondent's acquittal was correct as the prosecution did not prove the property was stolen or unlawfully obtained. The court emphasised that the statutory requirement for the prosecution to establish the property's unlawful status is non-negotiable. Since this essential element was not proven, the respondent could not be convicted under section 417(1). The appeal was dismissed, affirming the trial judge's decision. The court's ruling underscores the necessity of meeting all statutory requirements for a conviction under section 417(1) of the Criminal Code.

Orders