Welch v Dao

Case [2019] WASC 115


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

  1. 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…

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

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.

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Background

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Evidence

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Ratio Decidendi

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