Wessling v Police

RODERICK v POLICE
[2004] SASC 72
Magistrates Appeal: Criminal

BESANKO J: This is an appeal from a decision of a Magistrate pursuant to s 42 of the Magistrates Court Act 1991. The Magistrate recorded a conviction against the defendant for an offence against s 41 of the Summary Offences Act 1953 (“SOA”). The defendant appeals against the decision of the Magistrate to record a conviction. It is convenient to refer to the appellant as the defendant. Section 41 of the SOA reads as follows;
“(1) A person who has possession of personal property which, either at the time of possession or at any subsequent time before the making of a complaint under this section in respect of the possession, is reasonably suspected of having been stolen or obtained by unlawful means is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2) It is a defence to a charge for an offence against this section to prove that the defendant obtained possession of the property honestly.
(3) If personal property is proved to have been in the possession of a person, whether in a building or otherwise and whether the possession had been parted with before the hearing or not, it will, for the purposes of this section, be taken to have been in the possession of that person.”
The relevant items of personal property for the purposes of the charge were a polisher and a car light. At the start of the trial, possession of the two items was conceded by the defendant, and there was no issue on the appeal with respect to possession of the items.
There are two issues on the appeal, one relating to s 41(1) and the other relating to s 41(2). In relation to subsection (1), the defendant submits that the Magistrate erred in finding that there was a reasonable suspicion of the two items having been stolen or obtained by unlawful means. It is submitted by the defendant that the proper finding on the evidence was that the investigating police officer, who I will call the suspector, knew that the relevant items of personal property had been stolen, and that because that was a more advanced state of mind than reasonable suspicion, the case did not fall within the terms of the subsection. In relation to subsection (2), the defendant submits that the Magistrate erred in failing to find on the balance of probabilities that the defendant obtained possession of the relevant items of personal property honestly, and in particular, he failed to apply correctly the law relating to a claim of right.
The Prosecution Case
Mr Paul Kramer owned and operated a crash repair business called “Ravendale Crash Repairs” in premises at 6 Ravendale Road, Port Lincoln, in the State of South Australia. A person or persons broke into the premises between about 5:50PM on Friday 31^st January 2003 and 7:00AM on Saturday 1^st February 2003, and a number of items of personal property were stolen including the polisher and car light. Mr Kramer valued the polisher at about $400.00 and the car light at about $90.00. Some items of property were recovered on 1^st February 2003. The polisher and car light were recovered from the defendant, and at some stage they were returned to Mr Kramer.
Mr Neville Osborn operated a business called “Lincoln Ice Works” in premises at 123 Verran Terrace, Port Lincoln. The defendant went to the premises of Lincoln Ice Works at about 4:00PM on Wednesday 5^th February 2003. The defendant spoke to Mr Osborn and he said to him that he had a couple of things in the car that Mr Osborn might be interested in. He showed Mr Osborn the polisher and car light, and asked him whether they would be worth $60.00. Mr Osborn asked the defendant if the items were stolen, and the defendant said that they were not. Mr Osborn had suspicions about where the items had come from, and he knew that property had been stolen from Ravendale Crash Repairs a few days previously. Mr Osborn told the defendant that he was not interested in the items. After the defendant had left, Mr Osborn contacted Detective Senior Constable Ronald Hope, and made a statement to him. Mr Osborn told Detective Hope that the polisher he was shown by the defendant was the same polisher which he knew had been stolen from Ravendale Crash Repairs.
Detective Hope attended at the premises of Ravendale Crash Repairs on the 1^st February 2003 after the break-in had been reported. On 5^th February 2003 Mr Osborn spoke to him on the telephone, and Mr Osborn told him that the defendant had offered him some tools, and that he believed the tools to have been stolen. Detective Hope then went to the premises of Lincoln Ice Works and spoke to Mr Osborn. While on patrol with another police officer on the following day (i.e. 6^th February 2003) Detective Hope saw the defendant and spoke to him about the stolen items. The police officers and the defendant then went back to the premises where the defendant was then staying (8 Freeman Avenue, Port Lincoln), and the defendant showed Detective Hope where he kept the polisher and the car light. The two items appeared to be hidden in what Detective Hope thought was a child’s room. The defendant was then formally interviewed by Detective Hope and the other police officer. During the interview the defendant said that he took the two items from a shed on property occupied by his cousins, Ms Anita Walker and Mr Curtis Ware. He said that he thought he had done that on Tuesday 4^th February 2003. He said that he was going to give the items to his mother and brother‑in‑law. In his evidence, he denied making a reference to his mother. His brother‑in‑law is a Mr Allan Bilney. In answer to a question during the interview as to what he thought he had done wrong, the defendant said that he, “just took something that’s not mine”. The defendant also said that he knew he should not have “touched” the items, and that he discovered that they had been stolen on Wednesday 5^th February 2003.
Detective Hope said that he suspected that the two items had been stolen after he had spoken to Mr Osborn on 5^th February 2003, and that he believed they had been stolen after they were produced to him by the defendant, and that this was reaffirmed (to use Detective Hope’s word) by Mr Kramer. In cross‑examination, Detective Hope said that prior to submitting a report to the prosecution section of the South Australian Police, he confirmed with Mr Kramer that the property produced by the defendant was in fact property which had been stolen from him. He said that when he interviewed the defendant on 6^th February 2003, he had no doubt in his mind that the two items were stolen from Mr Kramer.
The Defence Case
The defendant said that Mr Curtis Ware is his cousin and he lived nearby with Ms Anita Walker. He went to Mr Ware’s house probably on Tuesday 4^th February 2003. He said that he had a talk with Mr Ware and Ms Walker before going out to the shed at the rear of the property. He saw the polisher and car light and thought that his brother‑in‑law, Mr Bilney, might be interested in borrowing them or using them. The polisher and car light were with other tools, and they were covered by a blanket.
The defendant said that he thought the polisher and car light belonged to Mr Ware, but he said it was common for aboriginal people to borrow things without asking for permission and then to return them when they had finished using them. The defendant said it was common for him to borrow things from Mr Ware without asking him.
The defendant said that he approached Mr Osborn to find out how much the two items were worth. At about the same time he found out from Mr Bilney’s partner that the two items were stolen from Ravendale Crash Repairs where Mr Bilney worked. The defendant said that he told the police in the interview that the two items were not his to take because they belonged to Mr Ware. In cross‑examination, the defendant said he was going to give the two items to Mr Bilney who was in effect borrowing them, and that he (Mr Bilney) would later return them to Mr Ware. Later, under questioning from the Magistrate, the defendant said that he was going to sell the two items to Mr Bilney. He said that Mr Ware “owed me something at the time”. Later, the defendant made it clear that he was talking about money. The defendant said that he was going to sell the two items to Mr Bilney, not Mr Osborn.
The defendant said that sometime before he was interviewed by the police he went to the premises of Ravendale Crash Repairs and spoke to Mr Kramer and Mr Bilney and told them that he had the polisher.
In re‑examination, the defendant said Mr Ware owed him money, and he thought he was right to take the two items and sell them because Mr Ware owed him money.
The defendant called Mr Bilney as a witness. He said that he worked at Ravendale Crash Repairs, and that some days after the break-in the defendant came to see Mr Kramer and himself and he told them that he had a polisher and light that might belong to them.
The Magistrate’s Reasons
At the end of the prosecution case, counsel for the defendant made a submission of no case to answer. He submitted that Detective Hope had actual knowledge, and therefore not reasonable suspicion, that the polisher and car light had been stolen. The Magistrate rejected the submission and delivered brief reasons for his decision. First, he said that before he confirmed ownership of the two items with Mr Kramer, Detective Hope had no more than a belief and therefore a reasonable suspicion. Secondly, even after he had confirmed ownership, it was arguable (said the Magistrate) that it could not be known that the two items had been stolen or obtained by unlawful means until the Court made findings to that effect.
Generally speaking, the Magistrate made findings in accordance with the evidence given by the witnesses called by the prosecution.
Importantly, he made a finding that Detective Hope held a suspicion based on reasonable grounds that the defendant had either stolen the items, or had obtained possession of them by unlawful means.
The Magistrate referred to the defence in s 41(2), and he said that the defendant bore the onus of establishing the defence on the balance of probabilities.
The Magistrate accepted Mr Osborn’s version of what passed between himself and the defendant. He rejected the defendant’s version, namely, that he had approached Mr Osborn in order to ascertain how much the items were worth. The Magistrate found that the defendant had attempted to sell the items to Mr Osborn for $60.00.
The Magistrate also rejected the defendant’s evidence that he did not take the items to Mr Bilney because he did not have transport and he noted that the defendant had transport to go to the premises of Lincoln Ice Works.
The Magistrate found that the defendant took the items from a shed on the property occupied by Ms Walker and Mr Ware, and that he did so in order to sell them to obtain money. The Magistrate found that the defendant offered to sell the items to Mr Osborn for $60.00. The Magistrate found that on Tuesday 4^th, Wednesday 5^th and the morning of Thursday 6^th February, the defendant had unlawful possession of the items.
The Magistrate said that he was not prepared to find beyond reasonable doubt that at the time he attempted to sell the items to Mr Osborn, the defendant knew of the break‑in at the premises of Ravendale Crash Repairs, and that a quantity of tools had been stolen.
The Magistrate was not prepared to find on the balance of probabilities that the defendant was owed money by Mr Ware. The defendant’s uncorroborated evidence was unreliable. The Magistrate said that the defendant did not have a belief, genuine or otherwise, that he could take the property. He took the items from the shed with an intention to sell the items to obtain money. The Magistrate found that the defendant did not obtain possession of the items honestly and he therefore rejected the defence. The Magistrate found the charge proved beyond reasonable doubt.
Issues on Appeal
As I have said, there were two issues raised on the appeal.
The first submission made by the defendant was that the suspector (Detective Hope) had a more advanced state of mind as to whether the two items had been stolen or obtained by unlawful means than reasonable suspicion, and that therefore, the defendant could not be guilty of an offence under s 41. I was referred to a number of cases which have discussed s 41 of the SOA, and its predecessors, s 71 of the Police Act 1916, s 93 of the Police Act 1936 and s 41 of the Police Offences Act 1953. It is not necessary for me to refer to the older cases in any detail, because I think there is more recent authority which is relevant to the issues in this case, and which is binding on me.
The development of the relevant principles may be seen in the early cases of Moore v Allchurch [1924] SASR 111; Homes v Thorpe [1925] SASR 286; Lenthall v Newman [1932] SASR 126; Hewitt v O’Sullivan [1947] SASR 384 and Wallace v Hansberry [1959] SASR 20.
It is convenient to start my discussion of the relevant issues with the decision of the Full Court of this Court in Raynal v Samuels (1974) 9 SASR 264. The issue in that case was whether the police officer’s state of mind went beyond reasonable suspicion, and could be said to amount to knowledge that the goods had been stolen by the defendant. The Court examined the decision of the Full Court in Lenthall v Newman (supra). For the purposes of the issues in this case, the essence of the Court’s decision in Raynal v Samuels (supra) may be found in the following three passages (at 266-267, 272 and 273 respectively):
“In Lenthall v Newman [1932] SASR 126, at p.132 the Court said: ‘We agree that a distinction must be drawn between “suspecting that the property has been stolen” and “knowing when and from whom it was stolen”, that is, knowledge in the sense of being able to testify to all the ingredients essential to the charge of a specific offence, without recourse to information and belief; but we think that anything short of knowledge, in that sense, is suspicion for the purposes of this section.’
We would add that it may not necessarily involve ‘knowing when and from whom it was stolen’ in order to establish the offence of larceny of certain property; but we think that essentially knowledge for present purposes, which excludes mere suspicion, is as defined in that case namely ability ‘to testify to all ingredients essential to the charge of a specific offence, without recourse to information and belief’.
...
As we said earlier, the Solicitor‑General argued that this Court should overrule the decision in Lenthall v Newman in so far as that case was to be regarded as authority for the proposition that knowledge excludes the operation of the section. In our view the ratio decidendi of that case does not extend so far. It goes to the extent of laying down that a state of mind resulting from the finding of suspect property in a defendant’s possession and a confession by the defendant of their having been stolen or otherwise unlawfully obtained does not amount to knowledge which excludes the section. These facts are substantially on all fours with those of the present case. We therefore do not need to rule on the correctness or otherwise of the dicta in Lenthall v Newman to the effect that knowledge ousts the section. Anything we said on that topic would be obiter, and in our opinion it would be only creating confusion to make obiter dicta of our own at variance with those in Lenthall v Newman, even if we thought the law as stated in the dicta in that case to be mistaken. We therefore prefer to express no view on that topic.
...
Although we think that the state of mind of Constable Poole and Constable Beard had reached the stage of belief rather than mere suspicion in the non‑technical sense of the word, Lenthall v Newman and Hewitt v O’Sullivan are authorities for the proposition that belief comes within the technical meaning of the word suspicion. We accept those authorities on this point, with which we respectfully agree. For reasons already given it is not necessary or desirable to go further in this case, or to decide whether, having regard to the law’s insistence upon proof of facts in a court of law before the guilt of an accused can be ‘known’, it is ever possible to assert that a person knows, extra‑judicially, that an alleged offender is guilty of theft. However, upon the tests propounded in Lenthall v Newman, such a case, if it can exist at all, must be extremely rare.”
In Tepper v Kelly (1988) 47 SASR 271 the Full Court of this Court again considered the scope of s 41. White J (with whom von Doussa J agreed) said (at 276):
“It is natural that the Court should require that a police officer have an actual suspicion and that the suspicion should be a reasonable suspicion no more, no less - at the time of the arrest or report or at the time of the laying of the complaint. The fact that some new evidence comes to light later which tends to undermine the reasonableness of the suspicion originally entertained, does not prevent the suspicion having the quality of reasonableness at the time of the making of the complaint. The Court can still form the opinion or judgment that the quality of being ‘reasonably suspected of having been stolen or obtained by any unlawful means whatsoever’ attached to the personal property in the mind of the arresting officer or complainant. If the police officer has so much information that he knows full well that the property is stolen, he does not merely suspect because he knows of his own knowledge (as explained in Raynal v Samuels (1974) 9 SASR 264 (F Ct.)) that fact - and if the police officer has too little information so that his suspicions are mere conjecture, the relevant suspicion is again not established. Neither the states of mind at opposite ends of the spectrum can amount to reasonable suspicion: see also Homes v Thorpe [1925] SASR 286; Henderson v Surfield and Carter [1927] SASR 192; Lenthall v Newman [1932] SASR 126 and Hewitt v O’Sullivan [1947] SASR 384. It is enough to found the charge and reverse the onus if personal property in the possession of the defendant is property which is reasonably suspected of having been stolen or obtained by any unlawful means whatsoever, a suspicion entertained by the particular officer on the proved facts and endorsed as reasonable by the Court - not beyond reasonable doubt but as a matter of considered judgment or opinion.”
It is clear enough from the authorities that if the suspector has knowledge that the personal property has been stolen or obtained by unlawful means, then he or she does not have a reasonable suspicion. I think that it is also clear that knowledge has been narrowly defined to mean first‑hand knowledge, and does not include a state of mind based on information or belief. Belief is suspicion not knowledge. Furthermore, the fact that a defendant has made an admission during an interview may not be sufficient to convert a suspicion into knowledge (Raynal v Samuels (supra) at 271). The Court in Raynal v Samuels went so far as to raise a question as to whether a suspector can ever have knowledge absent findings by a court. On the facts of this case it is unnecessary for me to consider this last point any further.
It will be readily apparent that the narrower the definition of knowledge the wider the scope of the section.
I turn now to apply these principles to the facts of this case. I do not think that it can be said that at any point in time before the making of the complaint Detective Hope knew that the two items were stolen or obtained by unlawful means. He had no direct knowledge of that fact, but rather was relying on information provided to him by Mr Kramer. In those circumstances, Detective Hope’s state of mind went no further than reasonable suspicion and the first submission made by the defendant must be rejected.

There is an alternative approach to the issue which I think leads to the same conclusion. The reasonable suspicion referred to in the section must exist either at the time of possession or at any subsequent time before the making of the complaint. Literally that would mean that the terms of the section would be satisfied if at some point in time during the relevant period the suspector had a reasonable suspicion, even if later during the relevant period he gained knowledge. Such an interpretation would give a wide operation to the section because in many cases it is likely that at least at some point in time during the relevant period the suspector’s state of mind will rise no higher than reasonable suspicion. This point has not received much attention in the authorities. There is a detailed consideration of the time for suspicion in the context of s 69 of the Police Act 1892 (WA) in Ryan v Dimitrovski (1996) 16 WAR 457 per Steytler J at 471-476, but the legislation under consideration was in quite different terms, and the discussion is of no direct assistance. A limitation on the apparently wide terms of s 41(1) is suggested by a passage in the decision in Henderson v Surfield and Carter [1927] SASR 192. In that case the Full Court of this Court said that in considering the suspector’s state of mind, a court should not be too ready to divide up what is in reality one continuous transaction. The Court said (at 196):
“At no material point of time did Williams, in our judgment, ‘suspect’ the bag of wheat of ‘having been’ stolen or unlawfully obtained. Where the whole proceedings from first to last followed so closely as they did in this case, it would be absurd and unreasonable to use words in order to divide what was one continuous transaction, or to contend that for an intermediate moment, while the bag of wheat was at rest on the ground and before Williams accosted the men, he might have ‘suspected’ it of having been stolen, or to found a charge under the Statute on such a suggestion.”
I would accept this limitation.
It might reasonably be thought that having regard to the apparent purpose of the section it would not apply if the suspector’s state of mind rose to knowledge during the relevant period. If that happened, the prosecuting authority should charge the defendant with some other offence, such as larceny or receiving. However, subject to the one continuous transaction principle, I do not think it is possible to read down the words in s 41(1).
I do not think that the one continuous transaction principle is relevant here. Although the evidence is not particularly clear, it appears that some time elapsed between Detective Hope’s interview with the defendant, and the confirmation by Mr Kramer that the two items were his. It seems to me that even if I am wrong on the first point, and there was a point in time before the making of the complaint when Detective Hope knew rather than reasonably suspected, there was a point in time during the relevant period (ie., immediately after his interview of the defendant) when he had a reasonable suspicion within the terms of the section.
In conclusion, in relation to the defendant’s first submission, I think the submission fails because Detective Hope’s state of mind before the making of the complaint never rose above reasonable suspicion. He never had knowledge as that term has been defined in the authorities. In the alternative, if that be wrong and Detective Hope had knowledge before the making of the complaint, nevertheless, there was an earlier point in time when he held no more than a reasonable suspicion and the section applies in those circumstances.
The second submission made by the defendant was that the Magistrate had erred in failing to find that the defence in s 41(2) had been made out. It was accepted by the defendant that he carried the onus of making out the defence, and both parties accepted that the relevant standard was on the balance of probabilities.
The defendant submitted that the Magistrate should have found that Mr Ware owed the defendant money, and that he took the two items to sell them. In other words, the Magistrate should have found that the defendant had a bona fide belief that he was entitled to take the two items. He referred to cases which discuss a claim of right (The Queen v Lopatta (1983) 35 SASR 101; The Queen v Langham (1984) 36 SASR 48; Noble v Police (1994) 70 A Crim R 560). A claim of right as discussed in these cases is not a defence, but rather refers to an honest belief that negates the presence of the mental element necessary to make out the offence in issue. In The Queen v Langham (supra) King CJ said (at 53):
“In my opinion, however, the cases cited above show that where there is a genuine belief in a legal entitlement to the property taken, it is not necessary that the belief should extend to a legal right then and there to take the property either by the means adopted or at all. It is neither necessary nor desirable for the law to be specific as to the nature of the right or legal entitlement of which there must be a bona fide claim. The essential notion is that the claim of right must be of such a nature as to negative fraud or dishonesty in the taking of the property. Whatever criminal offence or civil wrong may be committed by taking property to which one believes oneself to be entitled, it is not the crime of larceny nor any crime of which larceny is a necessary ingredient.”
A belief that negates fraud or dishonesty in the taking of property is similar to, although perhaps not always the same as, the defence in s 41(2) of establishing that possession of the property was obtained honestly. In Lloyd v Hayes (1986) 40 SASR 401 Prior J considered the meaning of the word honestly in s 41(2) of the Police Offences Act 1953 which was in substantially the same terms as s 41(2) of the SOA. He said (at 403):
“The defence cannot be made out by one whose possession is obtained by conduct which cannot be described as legitimate, honourable or upright.”
It is unnecessary for me to explore this particular issue any further because in my opinion the defendant did not even make out a genuine belief in a legal entitlement to the property taken.
The Magistrate said that he was not able to make a finding as to whether Mr Ware owed the defendant money. He said that he was not prepared to believe the defendant’s uncorroborated evidence. The defendant criticised the Magistrate’s approach on a number of grounds. First, he said that the Magistrate refused to make a finding on the issue when he was required to do so. There is no substance in this criticism. The Magistrate simply said that he was not prepared to act on the defendant’s evidence that Mr Ware owed him money. There is no error in that approach. Secondly, the defendant said that the Magistrate imposed a requirement that the defendant’s evidence be corroborated, when there was no such requirement in law. There is no substance in this criticism. The Magistrate did not impose a requirement that the defendant’s evidence be corroborated. He simply said that he was not prepared to accept the defendant’s evidence, and that there was no evidence which supported the defendant’s evidence. Thirdly, the defendant said that his evidence that Mr Ware owed him money was not challenged, and absent a challenge, the evidence should have been accepted. The defendant referred to Browne v Dunn (1893) 6 R 67. I do not think that there is any substance in this criticism when regard is had to the circumstances in which the evidence was given. In his evidence‑in‑chief the defendant said that his intention was to borrow the two items, and that it was not uncommon for aboriginal people to do that even though the owner’s consent is not sought and obtained. The defendant said that he was going to give the two items to his brother‑in‑law, Mr Bilney, for him to use and then return to Mr Ware. In his evidence‑in‑chief the defendant made no mention of Mr Ware owing him money and that he had this in mind when he took the two items. It was during cross‑examination that the defendant said that he was going to sell the two items to Mr Bilney, and that Mr Ware owed him money. These versions are inconsistent, and in these circumstances, the Magistrate was not bound to accept a particular version put forward by the defendant, or indeed any evidence of the defendant as to the circumstances surrounding the taking of the two items.
The defendant admitted to taking the two items from the shed on the property occupied by Mr Ware, and based on Mr Osborn’s evidence the Magistrate was entitled to find that he did so with the intention of selling them to obtain money. The defendant did not have Mr Ware’s permission to take the two items. The Magistrate was entitled to say that he was not satisfied on the balance of probabilities that the defendant was owed money by Mr Ware.
In the circumstances stated in the previous paragraph, the defendant did not prove that he obtained possession of the two items honestly. The defendant’s second submission must be rejected.
Conclusion
For these reasons the appeal must be dismissed.

[2004] SASC 72

18 March 2004