Welch v Dao
[2019] WASC 115
•5 APRIL 2019
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 the Criminal Code (WA) s 417(1);
(2)PE 3614 of 2016 – possession of a yellow gold pendant which was reasonably suspected to be stolen or unlawfully obtained contrary to the Criminal Code s 417(1);
(3)PE 3615 of 2016 – possession of a (second) yellow gold pendant which was reasonably suspected to be stolen or unlawfully obtained contrary to Criminal Code s 417(1);
(4)PE 3616 of 2016 – with intent to defraud by deceit gained a benefit of $116.08 contrary to Criminal Code s 409; and
(5)PE 3617 of 2016 – with intent to defraud by deceit gained a benefit of $116.08 contrary to Criminal Code s 409.
The respondent entered a plea of not guilty to all charges. The respondent was not legally represented at trial, which took place over two days. The respondent was provided with a Vietnamese interpreter.
The respondent was convicted of two charges: PE 3614 of 2016 and PE 3615 of 2016, and acquitted of the remainder.
The Criminal Appeals Act 2004 (WA) s 7(1) allows an aggrieved party to appeal to a single judge of this court in respect of a decision made by a court of summary jurisdiction.[1] The appeal was commenced on 28 February 2018, and accordingly the appellant does not require an extension of time to appeal.[2]
[1] Criminal Appeals Act s 7(1).
[2] Criminal Appeals Act s 10(3).
The appellant appeals against the magistrate's decision to acquit the respondent in relation to charge PE 3613 of 2016. The appellant's sole ground of appeal is as follows:
The magistrate erred in law in concluding that 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.
On 13 November 2018, the respondent was served personally with a copy of the appeal notice and all other documents lodged with the appeal notice.[3] Having failed to lodge a Form 22 (notice of respondent's intention) within 7 days after the date on which the respondent was served with the appeal notice, the respondent was not entitled to take part or be heard in the appeal.[4] The respondent made no application to extend time in which to lodge a Form 22 (so as to seek to take part or be heard in the appeal),[5] and the appeal was heard in his absence.
[3] Service certificate lodged on behalf of the appellant on 15 November 2018.
[4] Criminal Procedure Rules 2005 (WA) r 67(4).
[5] Criminal Procedure Rules r 67(4).
The fact that the respondent did not take part and was not heard in the appeal is not determinative of the matter.
Leave to appeal
This is an appeal under Criminal Appeals Act pt 2, and the appellant requires leave to appeal.[6] The court must not give leave to appeal on a ground unless it is satisfied that the ground has a reasonable prospect of succeeding.[7] That means that the ground must have a rational and logical prospect of succeeding so that, in effect, it has a real prospect of success.[8] If leave to appeal is refused, the appeal is taken to be dismissed.[9]
[6] Criminal Appeals Act 2004 (WA) s 9(1).
[7] Criminal Appeals Act s 9(2).
[8] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[9] Criminal Appeals Act s 9(3).
It is appropriate that the application for leave to appeal be heard together with the appeal.[10]
[10] Samuels v The State of Western Australia [56].
The appeal
I now turn to the question of whether the magistrate's finding that the respondent was in possession of a brooch that was stolen precluded a finding that the respondent was in possession of a thing capable of being stolen, that was reasonably suspected to be stolen or otherwise unlawfully obtained.
For the reasons set out below, I am satisfied that there has been an error of law. Leave to appeal will be granted and the appeal allowed.
The facts
The appellant summarises the factual background as follows, which summary is consistent with my review of the transcript of the hearing before the magistrate.[11]
[11] Appellant's outline of submissions par 4 – 8; ts (7 February 2018).
On 18 September 2015, a burglary occurred at the home of Helen Smith. Items of jewellery were stolen including:[12]
(a)a distinctive regimental brooch which had been made for Ms Smith as a wedding present in 1964 (subject of charge PE 3613 of 2016, and this appeal); and
(b)two medals which once belonged to Ms Smith's father‑in‑law, Donald Gordon Hilary Henry Smith, and bearing his initials 'DGHH'. (Each medal was the subject of one charge of unlawful possession and one charge of fraud.)
[12] ts 38, 40, 44 – 45, 47 (7 February 2018).
On 20 October 2015, the respondent was a passenger in a car when it was stopped by police. During a search of his person, police located the regimental brooch in the pocket of his jeans. The respondent told police during the search, and in the subsequent electronic record of interview, that an unnamed friend had given him the brooch the day before.[13]
[13] ts 64 (7 February 2018); Exhibit E.
Subsequent enquiries by police revealed that on 27 September 2015 (9 days after the burglary), the respondent had attended at Belmont Cash Converters and entered into a transaction by producing his own identification.[14] The respondent admitted in the electronic record of interview that the signature on the relevant buy contract was his, and it was not in dispute at trial that he had gone to the Cash Converters store that day.
[14] ts 64 (7 February 2018).
Business records from Belmont Cash Converters indicated that the respondent had sold 11 items of jewellery to them that day, which had since been scrapped and sent to a gold broker.[15] Among the items were two 'yellow gold pendants' with engravings. One was recorded as having the engraving 'G.H.S 1923 Inter‑house C.C championship D.G.H.H. Smith'. The other was recorded as being engraved with 'men's open singles Villa Igiea 1925 OGHHSMITH'.[16]
[15] ts 52, 57 (7 February 2018).
[16] ts 56 (7 February 2018).
In her evidence, Ms Smith identified the brooch found on the respondent as the brooch stolen in the burglary.[17] As for the two medals, Ms Smith had not realised at the time of the burglary that they were in the safe, or that they had gone missing, as there was too much that had gone missing for her to remember.[18] The medals were on ribbons, one for winning something at Wimbledon and another for winning something at school in 1925.[19] The medals were her late husband's memorabilia, Ms Smith had rarely seen them and could not describe them but believed they were gold.[20]
The magistrate's reasons in relation to the Criminal Code s 417 charges
[17] ts 39 (7 February 2018).
[18] ts 40 – 41 (7 February 2018).
[19] ts 45 – 46 (7 February 2018).
[20] ts 45 – 46 (7 February 2018).
The hearing traversed two days and the magistrate gave oral reasons after the conclusion of the evidence and a short adjournment. The appellant summarises the magistrate's reasons as follows, which summary is consistent with my review of the transcript.[21]
[21] Appellant's outline of submissions par 9 - 13.
With regard to the two pendants or medals, the magistrate concluded that he was satisfied beyond reasonable doubt that the respondent was the person who had taken them to Belmont Cash Converters and therefore had been in possession of them. His Honour was likewise satisfied beyond reasonable doubt that 'one reasonable suspicion open is that … the two pendants in question may well have been stolen or unlawfully obtained', 'it being a very high probability that these two items … did come from the burglary, even if that may not be something which could be proven beyond a reasonable doubt'.[22] The magistrate noted that the pendant described as bearing engraving 'OHGGSMITH' was probably a typographical error.[23] His Honour convicted the respondent for unlawful possession of the two pendants (that is, convictions were recorded for charges PE 3614 of 2016 and PE 3615 of 2016).[24]
[22] ts 40 (8 February 2018).
[23] ts 39 (8 February 2018).
[24] ts 40 – 41 (8 February 2018).
With regard to the brooch, his Honour found as follows. [25]
It is a distinctive and valuable brooch and the evidences establishes beyond a reasonable doubt that the brooch in question, which was found on Mr Dao's person, is the same brooch stolen from Ms Smith's house during the burglary. The accused clearly on the evidence had it in his possession. In fact, it was in his pocket. What he said about it in the interview and also to the police officer at the time, in my view, was vague and not at all believable; that it was given to him by some unnamed person.
[25] ts 42 (8 February 2018).
The magistrate then made the following remark: [26]
The prosecution has elected to proceed with a charge of unlawful possession rather than a charge of receiving stolen property. In my view, this throws up a difficult legal question. I have not had a great deal of time to research the authorities on this point, but I have decided that I will make a decision on the matter today.
[26] ts 42 (8 February 2018).
His Honour referred to the authorities O'Brien v Reitze,[27] McLennan v Campbell,[28] Hoskins v Ramsden [No 2],[29] and Ruddock v Taylor,[30] and noted that 'the answer is not clear on the authorities that I've looked at'.[31]
[27] O'Brien v Reitze [1972] WAR 152 (Wickham J).
[28] McLennan v Campbell [2003] WASCA 145.
[29] Hoskins v Ramsden [No 2] [2009] WASCA 90.
[30] Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612.
[31] ts 42 – 43 (8 February 2018).
The magistrate expressed his reasons for dismissing the charge in relation to the brooch (charge PE 3613 of 2016) as follows: [32]
My view is that if the prosecution is able to prove that something is stolen – in other words, they know who the owner is and they know when it was stolen – then the correct charge is one of receiving stolen property.
I note that when a person is charged with receiving stolen property under section 414 of the Criminal Code, a conviction for unlawful possession is open if such a charge is established on the evidence. It does not operate the same way in reverse. If a person is charged with unlawful possession under 417, receiving or stealing or fraud are not alternative verdicts. ...
In my view, proof beyond a reasonable doubt that something is stolen is different from the court having a reasonable suspicion that something is stolen. I think that there are arguments both ways and there may well be authorities that support both points of view, but my view is that in relation to the brooch, which has clearly been proved to be stolen from Ms Smith's house, the appropriate charge is one of receiving and a conviction for unlawful possession is precluded.
Relevant provisions
[32] ts 43 (8 February 2018).
Chapter XLI of the Criminal Code concerns receiving property stolen or fraudulently obtained, and like offences.
The Criminal Code s 414
The Criminal Code s 414 concerns the more serious offence of receiving stolen property and provides:
414.Receiving stolen property etc.
Any person who receives any property which has been obtained by means of any act constituting an indictable offence, or by means of any act done at a place not in Western Australia which if it had been done in Western Australia would have constituted an indictable offence, and which is an offence under the laws in force in the place where it was done, knowing the same to have been so obtained, is guilty of a crime.
Alternative offence: s. 378, 409 or 417.
The offender is liable -
(a)if the court is satisfied as to the act by means of which the property was obtained, to the penalty provided for the offence constituted by that act, or to imprisonment for 14 years, whichever is the lesser;
(b)otherwise, to imprisonment for 14 years.
For the purpose of proving the receiving of anything, it is sufficient to show that the accused person has, either alone or jointly with some other person, had the thing in his possession, or has aided in concealing it or disposing of it.
In this section property as well as having the same meaning as that expression has in section 1 of this Code, includes not only such property as has been originally in the possession or under the control of any person, but also any property into or for which it has been converted or exchanged and anything acquired by the conversion or exchange whether immediately or otherwise.
The elements of the offence under s 414 are:[33]
1.that the property has been obtained by means of an act constituting an indictable offence;
2.that the property was received by the accused; and
3.that the accused knew that the property had been obtained by means of an indictable offence.
[33] Ollerton v The Queen (1989) 40 A Crim R 133, 140 (Brinsden, Kennedy & Nicholson JJ), also reported under the name of the co‑accused as Mabbott v The Queen [1990] WAR 323; (1989) 40 A Crim R 243, 251 (Kennedy J).
On a charge of receiving contrary to s 414, property alleged to be stolen must be identified as having been stolen.[34]
[34] Moodie v The Queen (1952) 54 WALR 80 (Walker J, with Jackson & Virtue JJ agreeing).
Although amended from time to time, the Criminal Code s 414 was part of the Criminal Code as introduced in 1913.
The Criminal Code s 417
The Criminal Code s 417 concerns unlawful possession and provides:
417.Possessing stolen or unlawfully obtained property
(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.
In order to establish an offence under s 417, the prosecution is required to prove the following elements beyond reasonable doubt:[35]
1.that the accused was in possession of a thing;
2.that the thing was capable of being stolen; and
3.that the thing was reasonably suspected to be stolen or otherwise unlawfully obtained.
[35] Le v Feakes [2018] WASC 331 [30] (Hall J). The same elements were required to establish an offence under the Criminal Code s 428: Marzano v Procopis [2009] WASC 332 (EM Heenan J), as noted in Whittle v Brown [2011] WASC 143 [58] (Jenkins J).
The third element requires the court to reach an objective conclusion on the evidence as to whether or not the thing might reasonably be suspected to be stolen or otherwise unlawfully obtained. It is now well established that the test is not whether the police or the complainant had the relevant suspicion at the time of seizure or arrest.[36]
[36] Ryan v Dimitrovski (1996) 16 WAR 457 (Malcolm CJ, Rowland & Steytler JJ); McLennan v Campbell (Pullin J).
As observed by Hall J in Le v Feakes,[37] the words 'reasonable suspicion' are not defined in s 417(1), however, a similar phrase is also used in the context of search warrants. In George v Rockett,[38] 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.[39] 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.[40]
[37] Le v Feakes [35] (Hall J).
[38] George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 115, referred to in Le v Feakes [35] (Hall J).
[39] George v Rockett, quoting from Kitto J in Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1996) 115 CLR 266, 303, referred to in Le v Feakes [35] (Hall J).
[40] Caratti v Potts [2015] WASC 86 [45] - [46] (Pritchard J), referred to in Le v Feakes [35] (Hall J).
The onus of proof of the elements is on the prosecution. However, the prosecution is not required to negative the defence in s 417(2). If an accused person relies upon s 417(2), he or she bears an evidentiary and legal onus to prove on the balance of probabilities that at the time he or she was in possession of the property he or she had no reasonable grounds for suspecting that the thing was stolen or unlawfully obtained.[41]
[41] Le v Feakes [31] (Hall J), citing Whittle v Brown [63] (Jenkins J).
An accused person will be found guilty of the offence if the prosecution proves the three elements beyond reasonable doubt and, where raised by the defence, the accused does not prove on the balance of probabilities that he or she had no reasonable grounds for suspecting that the property in question was stolen or unlawfully obtained.[42]
[42] Le v Feakes [32] (Hall J), citing Whittle [63] (Jenkins J).
The Criminal Code s 417 was inserted on 13 August 2014, together with s 417A.[43] The provisions of s 417 were originally contained in Criminal Code s 428, which was inserted into the Criminal Code on 31 May 2005 by the Criminal Law Amendment (Simple Offences) Act 2004 (WA) s 28, part of a general revision of the criminal law and removal of offences from the Police Act 1892 (WA).[44]Section 428 and s 417 are in similar form.[45]
[43] Criminal Code Amendment (Unlawful Possession) Act 2014 (WA) s 4.
[44] The Police Act s 69 was repealed by the Criminal Law Amendment (Simple Offences) Act 2004 (WA) s 59.
[45] The replacement of s 428 with s 417 in August 2014 did not alter the elements of the offence. The penalty provisions were varied: see Ian Weldon, LexisNexis, Criminal Law: Western Australia, vol 1 (at Service 191) [s 417.5].
The Police Act s 69 had concerned 'possession of property reasonably suspected to be unlawfully obtained', and had provided: [46]
69.Possession of property reasonably suspect to be unlawfully obtained
Every person who shall be brought before [the court] charged with having on his person or in his 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 the court] how he came by the same, shall be liable to a penalty.
[46] See discussion of the Police Act s 69 in Hoskins v Ramsden [2008] WASCA 139 (Miller JA), and Ian Weldon, LexisNexis, Criminal Law: Western Australia, vol 1 (at Service 191) [s 417.5].
As observed by Miller JA in Hoskins v Ramsden [2008] WASCA 139 [31]:
Prosecutions for offences under s 69 and the equivalent of that section in comparable legislation in other States required the courts to impose a strict construction upon the words which outlined the elements of the offence. This was because the courts recognised 'the extraordinarily serious character of the law which authorises the arrest of a person on mere suspicion, to be followed by his conviction and possible imprisonment unless he satisfies the court that he had no reasonable grounds for suspicion that the thing in his custody bore the taint of illegality' (Grant v The Queen (1981) 147 CLR 503 507 (Gibbs CJ, Mason, Aiken & Wilson JJ).
The justification for the amendment of the Criminal Code in 2004 to insert s 428 was that it would relieve the prosecuting authority of the requirement to prove that items had been stolen:[47]
This amendment was also recommended by the Western Australian Law Reform Commission in its 1992 'Report on Police Offences', when it stated that 'the Commission recognises that there is a need for an offence relating to possession of property which may be reasonably suspected of being stolen or otherwise unlawfully obtained, to deal with cases in which the evidence is insufficient to justify a charge of stealing or receiving.'…
[47] Second Reading Speech of the Criminal Law Amendment (Simple Offences) Bill 2004 reported in Western Australia, Parliamentary Debates, Legislative Assembly, 23 September 2004, 6533 (Mr J A McGinty, Attorney General); as discussed in Hoskins v Ramsden [2008] WASC 28 [31] (Templeman J).
As noted above, on a charge of receiving contrary to s 414, property alleged to be stolen must be identified as having been stolen.[48] In contrast, there is no obligation imposed by s 417 for there to be positive identification that an item reasonably suspected of having been stolen or unlawfully obtained was, in fact, stolen from a particular person.[49]
Did 'knowledge' mean that the charge under s 417(1) could not be proved?
[48] Moodie v The Queen.
[49] Hoskins v Ramsden [2008] WASCA 139 [25] (Miller JA), with approval of the finding in Hoskins v Ramsden [2008] WASC 28 [31] (Templeman J) considering the Criminal Code s 428.
The question raised by the appellant's appeal does not appear to have been the subject of judicial consideration since the introduction of Criminal Code s 417(1) in 2014. However, the question was considered in the context of the Police Act s 69, discussed in the context of the Criminal Code s 428, and considered by other State courts in the context of similar provisions. I therefore now turn to consider the authorities.
O'Brien v Reitze [1972] WAR 152
O'Brien v Reitze is an authority to which the magistrate expressly referred in his reasons.[50] It concerned a charge under the Police Act s 69 and supports a finding that 'knowledge' precludes a conviction for unlawful possession.
[50] ts 42 (8 February 2018).
The appellant in O'Brien v Reitze had been convicted on a charge of unlawful possession contrary to s 69, and sentenced to a term of imprisonment for 9 months.
In determining the appeal, Wickham J observed that in order to establish an offence under the Police Act s 69:[51]
[I]t must be shown that the thing in question was a thing capable of being stolen or, at the least, (and without necessarily so deciding) that the complainant suspected on reasonable grounds that it was such a thing; that the complainant at the least suspected that the thing had been stolen; that such suspicion was in fact reasonable. The complainant must harbour a real suspicion (Dunleavy v Dempsey (1916) 18 WALR 90) but it is not essential that he should actually swear that he held such a suspicion; that he did hold such a suspicion may be inferred from a combination of the proved facts themselves and the way in which the complainant acted: Le Poidevin v Hudson [1935] SASR 223. If these and the other necessary factors are present, then the accused ought to be convicted unless he gives an account to the satisfaction of the justice how he came by the thing: Douglas v Radalj (1949) 51 WALR 44.
[51] O'Brien v Reitze, 153 (Wickham J).
The appeal was decided on a basis now regarded as erroneous.[52] That is, the appeal was decided on the basis that it was the reasonable suspicion of the complainant police officer, rather than the court, which was relevant.
[52] Ryan v Dimitrovski; McLennan v Campbell.
In determining the appeal, Wickham J had regard to another submission developed on behalf of the accused, in the following terms:[53]
[I]f the actual proprietorship of the horses was known, the respondent did not suspect that they were stolen, but knew that they were stolen and for that reason the appellant could not be convicted under [s 69] of the Police Act, but only on indictment for stealing.
[53] O'Brien v Reitze, 154.
As to this submission, Wickham J found that: [54]
The true distinction is between suspicion or belief on the one hand, either of which would support a conviction under the section, and knowledge on the other. If it were shown that the complainant knew (or thought that he knew) that the goods were stolen and were stolen by the accused, a conviction under [s 69] could not be supported. In the absence of the complainant swearing to his state of knowledge, it would normally be difficult to infer that he had anything more than a strong suspicion or a belief. As said by Herring, C.J., in Fisher v McGee, supra, at p. 331:
It is one thing for a Magistrate in the course of his functions as a fact finding tribunal to infer from facts A and B, fact C as the reasonable inference therefrom. It is quite another thing for him in the course of examining a man's state of mind to impute to him knowledge of fact C, because he knows facts A and B, and fact C is a reasonable inference therefrom.
Anything short of knowledge of all the ingredients essential to the charge of a specific offence is suspicion for the purposes of the section: see Lenthall v Newman, supra, and Broad v Moore, [1925] SASR 297, per Richards, J., at p. 302.
[54] O'Brien v Reitze, 154 - 155.
The appellant in O'Brien v Reitze further contended that where the facts were such as to raise a prima facie case of stealing, then it was not open to convict summarily under the Police Act s 69. As to the submission, Wickham J found as follows: [55]
In the present case there was nothing to cause the magistrate to conclude that the respondent might have actually known the goods to have been stolen by the appellant, and under those circumstances it was open to him to convict, even though it was a case where theft might have been made out. The appeal against conviction must be dismissed.
Morrissey v Downing (1989) 1 WAR 304
[55] O'Brien v Reitze, 155.
Morrissey v Downing was not an authority brought to the attention of the magistrate, nor was it referred to in his Honour's reasons. It also concerned a charge under the Police Act s 69, and was decided on the basis that it was the reasonable suspicion of the complainant police officer, rather than the court, which was relevant.
The respondent in Morrissey v Downing had pleaded guilty to having had in his possession goods reasonably suspected of having been stolen or unlawfully obtained. The charge was dismissed by the magistrate because the property the subject of the complaint was said by the prosecutor to have been known to have been owned by a particular identity, that is Qantas Ltd.
The appellant appealed the decision of the magistrate, arguing that the magistrate erred in law in dismissing the complaint on the basis that, where the ownership of stolen property is known to the complainant, a complaint cannot be brought under the Police Act s 69. As to this ground, Wallace J observed that:[56]
Goods may be reasonably suspected of being stolen where the complainant either suspects or believes, as opposed to knows, they are stolen. Where the complainant knows goods to have been stolen, he does not 'suspect' them to have been stolen within the meaning of s 69 of the Act. The appellant argues that knowledge is, for the purposes of the offence, a state of mind produced by the strongest evidence, such as direct observation of the commission of a crime, without recourse to information and belief: Raynal v Samuels (1974) 9 SASR 264 at 266. The source and nature of the complainant's belief were not in evidence or otherwise before the Court, thus there was nothing to suggest that it was other than a reasonable suspicion that was held. Merely because the complainant knew, or believed he knew, who was the owner of the goods, does not take his state of mind outside the scope of s 69 of the Act.
[56] Morrissey v Downing, 305.
The appeal was allowed as Wallace J found that the facts did not establish that the complainant actually knew that the goods had been stolen, as opposed to having information or belief that that was the case.[57] His Honour noted that:[58]
When the law is that the knowledge required to make the section inoperative is something which goes beyond mere suspicion or belief, and is a state of mind produced by the strongest evidence such as direct observation of the commission of crime by the so-called suspector, in Lenthall v Newman [1932] SASR 126 at 132 as confirmed in Raynal v Samuels (supra) at 266 then it seems to me that the grounds of appeal have been established.
Simpson v Correia (1995) 13 WAR 525
[57] Morrissey v Downing, 306.
[58] Morrissey v Downing, 306.
Simpson v Correia was not an authority brought to the attention of the magistrate. It also concerned a charge under the Police Act s 69, and was decided on the basis that it was the reasonable suspicion of the complainant police officer, rather than the court, which was relevant.
The appellant appealed the decision of a magistrate. The grounds of appeal raised as an error of law on the part of the magistrate his failure to dismiss the complaint as an abuse of process. Four matters were raised as particulars in support of the error of law contended, namely:[59]
A.The complainant police officer had statements from two people, who were not called as witnesses.
B.His view was that those statements were evidence that the [appellant] was guilty of receiving the property the subject of the charge.
C.The complainant, therefore, could not have a mere 'suspicion' that the property was unlawfully obtained.
D.By charging the [appellant] under s 69 of the Police Act, instead of receiving under s 414 of the Criminal Code, the [appellant] was denied the chance to cross examine the people whose evidence would be crucial to establishing the [appellant's] connection to the property concerned.
[59] Simpson v Correia, 526 (Parker J).
Dismissing the appeal, Parker J found that neither the complainant nor any of the other investigating police had 'knowledge' in the sense in which that concept had been understood and applied in Lenthall v Newman,[60] and in Raynal v Samuels,[61] that the property in question had been received by the appellant.[62]
It was known that Shane Terry made a statement which if true would establish that to be the case. But the authorities are clear that this cannot constitute 'knowledge' in the relevant sense. It is mere suspicion even if the complainant believed Shane Terry's account and therefore believed that the appellant had received the CD player. Neither the complainant nor any of the other investigators were 'able to testify to all the ingredients essential to the charge (of receiving) without recourse to information and belief'.
It follows, accepting and applying Lenthall v Newman, and leaving for another day the reservations of the South Australian Full Court in Raynal v Samuels whether even Lenthall v Newman is too narrowly decided, that the complaint under s 69 was properly made even though a complaint of receiving could have been made on the information available to the complainant.
That being so, the facts of this case do not provide a basis on which it would be proper to stay the hearing of the complaint or to dismiss it as an abuse of process.
[60] Lenthall v Newman [1932] SASR 126.
[61] Raynal v Samuels (1974) 9 SASR 264.
[62] Simpson v Correia, 529 (Parker J).
While noting that the 'reversal of the normal onus of proof provides reason to be wary against improper use of the provisions of this type',[63] Parker J found that the circumstances before his Honour did not provide an example of the 'clear abuse' which might be needed for the court to intervene.[64]
McLennan v Campbell [2003] WASCA 145
[63] Simpson v Correia, 527 (Parker J).
[64] Simpson v Correia, 529 (Parker J).
McLennan v Campbell was an authority that was drawn to the attention of the magistrate, and to which his Honour referred in his reasons.[65]
[65] ts 25 (7 February 2018) and ts 42 (8 February 2018).
It concerned an appeal from a decision of a magistrate to dismiss a charge that the respondent had in her possession five pieces of scrimshaw reasonably suspected of being stolen or unlawfully obtained, contrary to the Police Act s 69.
The decision records as follows at [4] to [8]:
The evidence led by the prosecution was from two witnesses. The first was a Mr Trevor Cross. He gave evidence that the five pieces of scrimshaw were stolen from his car in 1998 when it was parked in East Victoria Park. He also gave evidence that in November 2001 he was in Albany and the respondent offered to sell the scrimshaw to him. There was no dispute that the scrimshaw offered was the scrimshaw stolen from Mr Cross. The other witness was Constable Quail-Smith. She was present when the respondent showed the scrimshaw to Mr Cross.
The respondent was later charged with this offence.
During cross-examination of Constable Quail-Smith, it was put to her that she 'knew' that the scrimshaw had been stolen from Mr Cross. The constable agreed with that proposition.
His Worship then heard submissions from counsel for the respondent that the prosecution had 'knowledge' of the scrimshaw being stolen rather than a 'suspicion'. Counsel referred to O'Brien v Reitze [1972] WAR 152. In that case Wickham J said, in the course of reasons for decision concerning a charge under s 69, that:
The true distinction is between suspicion or belief on the one hand, either of which would support a conviction under the section, and knowledge on the other. If it were shown that the complainant knew (or thought that he knew) that the goods were stolen and were stolen by the accused, a conviction under the section could not be supported.
The Magistrate gave abbreviated reasons for decision which appeared to be to the effect that because the police knew that the scrimshaw was stolen, they did not have a suspicion the scrimshaw had been stolen. He held that the police knew it was stolen because Mr Cross proved it to them. For that reason, the Magistrate dismissed the charge. The appellant, in ground 1, complains that:
The learned Magistrate erred in fact and in law in finding that Constable Quail-Smith knew that the items of property had been stolen or unlawfully obtained.
As Pullin J observed, the case raised two questions, the first of which is directly relevant to the present appeal. First, whether 'knowledge' that the scrimshaw had been stolen rather than a 'suspicion' it had been stolen means that the charge (under s 69) has not been proved. Secondly, who is it who must hold the suspicion.[66]
[66] McLennan v Campbell [9], as referred to in the appellant's outline of submissions filed 27 February 2019 par 20.
With regard to the first question, Pullin J noted that 'uninstructed by authority [his Honour] would have concluded that the phrase "which may be reasonably suspected of being stolen or unlawfully obtained" stated a minimum requirement only'.[67] After having regard to the authorities, His Honour came to the same conclusion.
[67] McLennan v Campbell [12].
His Honour noted that the genesis of s 69 can be traced back through New South Wales legislation and into English legislation passed in 1839.[68] His Honour then undertook a review of South Australian and Western Australian authority,[69] before turning to New South Wales and Queensland authority.
[68] McLennan v Campbell [13].
[69] McLennan v Campbell [14] – [21], referring to Holmes v Thorpe [1925] SASR 286; Henderson v Surfield & Carter [1927] SASR 192; Lenthall v Newman; Raynal v Samuels; O'Brien v Reitze; Morrissey v Downing; and Simpson v Correia.
Pullin J expressed agreement with Halse Rogers J in R v Grace where, concerning a provision similar in form to s 69, Halse Rogers J concluded:[70]
In our opinion Parliament did not intend that a nice distinction between suspicion and belief should be drawn in such a way as to limit the offence to cases of 'suspicion and no more'. We think that the words were intended to indicate a minimum and not a maximum as regards proof; that no man should be called upon to answer unless there were at least reasonable suspicion, but not that a man should be entitled to avoid answering, and go free of a charge, if there was some stronger feeling of mind than suspicion.
[70] McLennan v Campbell [22] citing R v Grace (1930) 30 SR (NSW) 158, 163.
Pullin J noted that the Queensland Court of Appeal in Wicks v Marsh[71] agreed with that conclusion; so too did Abadee J in R v Chan,[72] and Steytler J in Ryan v Dimitrovski referred to R v Chan with apparent approval.[73]
[71] Wicks v Marsh [1993] 2 Qd R 583; (1993) 67 A Crim R 71.
[72] R v Chan (1992) 28 NSWLR 421; (1992) 63 A Crim R 242, 433.
[73] Ryan v Dimitrovski, 478 - 479.
Pullin J also observed at [24] to [30]:
In Wicks v Marsh …, the Court of Appeal also dealt with the argument that it is an abuse of process to use the summary procedure provided by the Queensland provision equivalent to s 69 to deal with 'ordinary' cases of receiving. The same argument is advanced by the respondent in this case. The argument is that where the prosecution has sufficient evidence to support a charge of an indictable offence of stealing or receiving, then it should lay that charge and not lay a charge under s 69, which casts an onus on the accused to give an account of how he or she came by the thing. The Court of Appeal identified the cases which suggest that it would be an abuse to lay a charge under s 69 rather than proceeding by way of indictment on the more serious charge. The Court of Appeal then said in Wicks v Marsh … at 587:
We have some difficulty in understanding how it works an injustice to charge an accused person with a lesser offence (attracting a lesser penalty) which can be proven in a summary way, simply because a more serious charge could also be made out for which the accused would be tried by a judge and jury. To quote Mayo J in Hewitt at 393 - 394:
'I do not understand why the institution of a lesser charge (provided the evidence is of such a nature as to justify conviction) should be deemed to be unjust. … The motive for proceeding under the section is irrelevant, if the evidence discloses circumstances justifying a conviction …'
I respectfully agree with those observations. In any event, there was no application made to stay the proceedings.
Finally, I turn to the question as to who must hold the suspicion. The assumption in some cases has been that the suspicion must be the suspicion of the prosecutor or arresting authority.
The Court in Ryan v Dimitrovski … noted that in O'Brien v Reitze …, Wickham J said that under s 69 it must be shown that the complainant suspected that the thing had been stolen. However, Steytler J in Ryan v Dimitrovski … held at p 178 that s 69 does not require any particular person to form the suspicion. The Chief Justice agreed. It is a matter for the court hearing the charge to reach an objective conclusion from the evidence led as to whether or not the goods might reasonably be suspected of being stolen or unlawfully obtained.
As I have noted above, the learned Magistrate decided to dismiss the charge because he considered that Constable Quail-Smith 'knew' that the goods had been stolen. That was an error in law on the Magistrate's part. The Court was required to reach an objective conclusion as to whether or not it might reasonably be suspected that the scrimshaw had been stolen or unlawfully obtained. The decision must therefore be quashed.
In my opinion, this is an appropriate case for exercising the powers of this Court under s 199(1)(c) of the Justices Act to substitute the decision that ought to have been made by the Magistrate. I therefore turn to the evidence in the case. Mr Cross gave undisputed evidence that the scrimshaw was stolen. There was no proof that it was stolen by the accused. In my opinion, the circumstances therefore established beyond reasonable doubt that, viewed objectively, the scrimshaw might reasonably be suspected of being stolen or unlawfully obtained.
I would therefore quash the decision of the Magistrate and order that a conviction be recorded.
Hoskins v Ramsden [No 2] [2009] WASCA 90
The Court of Appeal in Hoskins v Ramsden [No 2],[74] considered the proper construction of s 428, the predecessor to the Criminal Code s 417. As noted above, s 428 and s 417 are in similar form.
[74] Hoskins v Ramsden[No 2] (Wheeler, Pullin & Buss JA).
By the appeal, the appellants sought review on the following ground.[75]
There was an error of law in the conviction of the Appellants because when the State alleges that a thing is reasonably suspected of being stolen or unlawfully obtained under Criminal Code (WA) section 428, by reason of a previously committed offence (such as burglary) then the State must positively identify and establish that the thing was derived from that previous offence in order to discharge the burden of proof beyond a reasonable doubt.
[75] Hoskins v Ramsden[No 2] [18]. The second ground of appeal was abandoned by the appellants.
Hoskins v Ramsden [No 2] did not concern the issue to be determined in this appeal, whether knowledge that the property had been stolen (rather than a suspicion it had been stolen) precluded a conviction of that offence. Rather, the opposite contention was pressed by the appellant: that s 428 required the prosecution to positively identify and establish that the item in question was derived from a specific offence.
In her Honour's reasons, Wheeler JA (with whom Pullin JA and Buss JA agreed) acknowledged the apparent controversy in the authorities as to the consequence of finding it proved, beyond reasonable doubt, that particular property was stolen. However, the appeal did not require the controversy to be resolved. Her Honour determined in the appeal as follows:[76]
The construction contended for by the appellants is not correct. The distinction between proof beyond reasonable doubt, and suspicion (reasonable or otherwise) is fundamental to the criminal law, and there is no reason to suppose that when Parliament used the latter term, it intended the former. All authority dealing with similar legislation appears to be consistent with what I would understand as the plain meaning of the section.
It follows that an interpretation in which a 'beyond reasonable doubt' identification of an item is a requirement where it is alleged that an item, suspected to have been stolen, is related to a specific theft, is inconsistent with the plain meaning of the word 'suspected'. As Smith J said in Nicholls v Young [1992] 2 VR 209 at 214, '[i]t is in the nature of suspicions that it is possible to hold more than one suspicion at the same time and to hold suspicions which are inconsistent'.
Dealing with s 527C of the Crimes Act 1900 (NSW), in R v Porter (2004) 61 NSWLR 384, Spigelman J said, in reasons with which Barr and Hoeben JJ agreed, at [28]:
In my opinion, the offence is intended to encompass circumstances in which the provenance, including the geographical provenance, of goods in custody is unknown. Other offences, both at common law and by statute, of dealing with unlawfully obtained goods do contain elements which require proof that a thing has in fact been stolen or unlawfully obtained. An important purpose of having an offence which turns on 'reasonable suspicion' is to cover situations in which such an element cannot be established.
In R v Chan (1992) 28 NSWLR 421, Abadee J said, of s 527C of the Crimes Act (at 433), that 'where bank notes are involved, because of their very nature and kind, actual proof that they were stolen or unlawfully obtained could be difficult or even impossible' and so the 'argument that the relevant statutory "reasonably suspected" cannot be found in the absence of some actual evidence identifying the very bank notes with some general criminal activity or specific crime, should thus be rejected'. The same may be said regarding mass produced jewellery.
Section 527C is not identical to s 428 of the Criminal Code as, among other differences, it refers to a thing which 'may be' reasonably suspected of being stolen or otherwise unlawfully obtained, rather than a thing which 'is' reasonably suspected. However, the sections are so similar that the same reasoning would apply to both.
In this State, in considering the former s 69 of the Police Act1892 (WA), Pullin J concluded that the expression "reasonable suspicion" indicated a minimum and not a maximum as regards proof, so that a conviction would not be precluded if the evidence justified a certainty greater than 'suspicion': McLennan v Campbell [2003] WASCA 145. It follows from his Honour's reasons that the section does not require any certainty greater than suspicion to be established.
There is some controversy in the authorities concerning whether, if it is proved beyond reasonable doubt that particular property was stolen, a person can be convicted of having possession of property 'reasonably suspected' of having been stolen, in respect of the same property. Some cases hold, or appear to hold, that conviction will be precluded if the proof rises so far above suspicion as to amount to proof beyond reasonable doubt: Ruddock v Taylor [2005] HCA 48 (McHugh J) at [71] ‑ [89]. Those cases, however, if correct, would not assist the appellants, since they stand for a proposition precisely the reverse of that for which they contend.
[76] Hoskins v Ramsden[No 2] [24] - [30].
In this appeal, the appellant contends that the reference in Hoskins v Ramsden [No 2] to a 'controversy in the authorities' was equivocal and did not purport to reverse the state of the law as established in McLennan v Campbell, that suspicion was a minimum and not a maximum as regards proof.[77]
Ruddock v Taylor [2005] HCA 48; (2002) 222 CLR 612
[77] Appellant's outline of submissions filed 27 February 2019 par 25.
In Hoskins v Ramsden [No 2], Wheeler J referred to the judgment of McHugh J in Ruddock v Taylor.
Ruddock v Taylor concerned an appeal from the New South Wales Supreme Court, concerning the lawfulness of the respondent's immigration detention.
In his dissenting judgment, McHugh J reviewed various authorities of the States concerning legislation dealing with goods suspected of being stolen and whether actual knowledge is inconsistent with suspicion,[78] and observed that the State courts are divided:[79]
The State courts are divided … on the issue of whether knowledge in the sense described in Lenthall can constitute reasonable suspicion. Courts in South Australia, Victoria and probably Western Australia would answer the question in the negative. But courts in Queensland and New South Wales would answer it in the affirmative. However, the debate over issues concerning legislation dealing with property suspected of being stolen is not decisive of the issues in the present case.
Disposition
[78] Ruddock v Taylor [75] – [88].
[79] Ruddock v Taylor [88].
When considering the learned magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As noted by Martin CJ in Strahan v Brennan,[80] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:[81]
[I]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different timeframe to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
[80] Strahan v Brennan [2014] WASC 190 [89] – [90].
[81] Strahan v Brennan [90], referred to in Birch v Binnenkamp [2018] WASC 58 [15] (Archer J).
I have approached the learned magistrate's reasons with this in mind. However, having given careful consideration to the authorities, I find that the decisions of this court in O'Brien v Reitze, Morrissey v Downing, and Simpson v Correia are inconsistent with the later decision of Pullin J in McLennan v Campbell. To the extent that the learned magistrate was not bound to follow the later decision of Pullin J, I find that he nevertheless erred in not doing so.
I accept the submission of the appellant that the earlier decisions of this court in O'Brien v Reitze, Morrissey v Downing, and Simpson v Correia must be treated with circumspection given that the consideration of knowledge and reasonable suspicion in those decisions were all on the basis that the relevant state of knowledge was that of the complainant police officer, not the court, a position which has since been rejected by the Full Court of the Supreme Court in this jurisdiction.[82]
[82] Appellant's outline of submissions filed 27 February 2019 par 18 citing Ryan v Dimitrovski.
In McLennan v Campbell, Pullin J noted that 'Mr Cross gave undisputed evidence that the scrimshaw was stolen.'[83] In this case, the magistrate found that the evidence established beyond reasonable doubt that the distinctive and valuable brooch found on the respondent was the same brooch stolen from Ms Smith's house.[84]
[83] McLennan v Campbell [29].
[84] ts 42 (8 February 2018).
In considering the former s 69 of the Police Act, Pullin J concluded that the expression 'reasonable suspicion' indicated a minimum and not a maximum as regards proof, so that a conviction would not be precluded if the evidence justified a certainty greater than 'suspicion'.[85] It follows from his Honour's reasons that a conviction would not be precluded if the evidence established beyond reasonable doubt that property was stolen.
[85] McLennan v Campbell [22].
Further, adopting the analysis of Pullin J in McLennan v Campbell at [12], I note that to apply the reasoning of the earlier decisions would lead to the result that the stronger the grounds for suspecting the property was stolen, the less likely the prospects of conviction under s 417. That is, conviction under s 417 would depend on the evidence being just enough to establish reasonable suspicion by the court, but not too much so as to establish beyond reasonable doubt that the property had been obtained by means of an act constituting an indictable offence.
Further, if it was established that property was stolen, but not established that an accused knew that the property had been obtained by means of an indictable offence, applying the reasoning of the earlier decisions would also lead to the result that the alternative offence under s 417 would not be available.
It was not argued before the magistrate that it was an abuse of process for the prosecution to press a charge under s 417 when the evidence established that the property was stolen. I agree with the observations of the Court of Appeal in Wicks v March at 587 (referred to with approval by Pullin J in McLennan v Campbell at [24] and [25]):
We have some difficulty in understanding how it works an injustice to charge an accused person with a lesser offence (attracting a lesser penalty) which can be proven in a summary way, simply because a more serious charge could also be made out for which the accused would be tried by a judge and jury. To quote Mayo J in Hewitt at 393‑394:
'I do not understand why the institution of a lesser charge (provided the evidence is of such a nature as to justify conviction) should be deemed to be unjust. … The motive for proceeding under the section is irrelevant, if the evidence discloses circumstances justifying a conviction …'
Potential abuse is not a basis to apply the reasoning of the earlier decisions. Rather, if presented with circumstances which constitute an abuse of the process of the court, then the Criminal Procedure Act s 76(1) allows the court to order a permanent stay of the charge.
For the reasons set out above, I find that the magistrate erred by not following the decision of Pullin J in McLennan v Campbell, and concluding that 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.
Conclusion and orders
The learned magistrate found beyond reasonable doubt that the brooch the subject of PE 3613 of 2016 was in fact stolen from Ms Smith, that it was in the respondent's possession, and that his explanation that it had been 'given to him by some unnamed person' was 'vague and not at all believable'.[86]
[86] ts 42 (8 February 2018).
If it was open to the magistrate to conclude on the evidence that the brooch had been obtained by means of an act constituting an indictable offence, it was also open to the magistrate to conclude that the brooch was property capable of being stolen; and the brooch was reasonably suspected to be stolen or otherwise unlawfully obtained.
Based on his Honour's findings of fact, all the elements of s 417(1) were proven beyond reasonable doubt, and the defence under s 417(2) not proven on the balance of probabilities, such that a conviction should have been entered in relation to that charge.
After hearing the appellant as to the appropriate form of orders, for the reasons set out above, I propose to make orders in the following terms:
1.Leave to appeal is granted.
2.The appeal is allowed.
3.The judgment of acquittal on PE 3613 of 2016 is set aside.
4.A judgment of conviction is entered in relation to PE 3613 of 2016.
5.The case shall be remitted to the Magistrates Court for sentencing and a summons shall issue for the respondent to attend before a magistrate to be sentenced.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IH
Research Associate to the Honourable Acting Justice Strk
5 APRIL 2019
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