Whittle v Brown - [2011] WASC 143

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: WHITTLE -v- BROWN [2011] WASC 143

CORAM: JENKINS J

HEARD: 11 APRIL 2011

DELIVERED : 22 JUNE 2011

FILE NO/S: SJA 1120 of 2010

BETWEEN: VALERIE JEAN WHITTLE
Appellant
AND
SEAN LINSTEAD BROWN
First Respondent
BRADLEY WAYNE GARDINER
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B A LANE
File No  :JO 3841 of 2009, JO 9246 of 2009, JO 9247 of 2009

Catchwords:

Criminal law - Appeal - Receiving - Unlawful possession of property - Possession of counterfeit currency - Sufficiency of evidence - Onus of proof - Failure to consider and make findings on statutory defences - Substantial miscarriage of justice

Legislation:

Crimes (Currency) Act 1981 (Cth), s 9
Criminal Appeals Act 2004 (WA), s 14(2)
Criminal Code (WA), s 414, s 428
Magistrates Court Act 2004 (WA), s 31

Result:

Appeal against conviction for unlawful possession of things suspected of being stolen or unlawfully obtained (JO 9246 of 2009) allowed
Appeal otherwise dismissed

Category: B

Representation:

Counsel:

Appellant:     Ms K J Farley
First Respondent           :     Ms F A Cain
Second Respondent       :     Ms F A Cain

Solicitors:

Appellant:     Legal Aid (WA)
First Respondent           :     Director of Public Prosecutions (WA)
Second Respondent       :     Director of Public Prosecutions (WA)

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

Bruce v The Queen [1987] HCA 40; (1987) 74 ALR 219
Hoskins v Ramsden [2008] WASC 28
Khalil v The Queen (1987) 44 SASR 23
Laurens v Willers [2002] WASCA 183
Marzano v Procopis [2009] WASC 332
Maslin v Searle [2010] WASC 146
McLennan v Campbell [2003] WASCA 145
Ryan v Dimitrovski (1996) 16 WAR 457

JENKINS J: On 25 October 2010 the appellant was convicted, after trial, of possessing property reasonably suspected to be stolen or unlawfully obtained, receiving stolen property and possessing counterfeit money. She appeals against each conviction.

Ground of appeal

On 10 January 2010 the appellant was granted leave to appeal in respect of the one ground of appeal which relates to each charge. It is that the magistrate erred at law in, effectively, reversing the onus of proof in relation to each charge.

The charges

Prosecution notice JO 3841 of 2009 alleged that on 4 December 2008 at Craigie the appellant
had in her possession counterfeit money, namely Australian $50 note, knowing it to be counterfeit money.
Prosecution notice JO 9246 of 2009 alleged that on 29 April 2009 at Craigie the appellant
was in possession of 2 Acer laptop computers, a Toshiba laptop computer and a HP Pavilion laptop computer that were reasonably suspected to be stolen or unlawfully obtained.
The appellant was found not guilty of the charge so far as it related to one of the Acer laptop computers, but was found guilty of the charge in respect of the other laptop computers.
Prosecution notice JO 9247 of 2009 alleged that on the same date and at the same place the appellant
received a Toshiba laptop computer,…

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 Whittle v Brown

Details

AGLC: Whittle v Brown [2011] WASC 143
Case: [2011] WASC 143
Decision Date: 22 JUNE 2011

CaseChat Overview and Summary

The case of Whittle v Brown involved an appeal against the conviction of the applicant for receiving counterfeit currency. The applicant had been found guilty of possessing counterfeit currency with intent to use it. The matter was heard in the Court of Criminal Appeal. The primary issues before the court were whether the evidence was sufficient to support the conviction and whether the trial judge had properly considered the statutory defences available under the relevant legislation.

The court examined the sufficiency of the evidence presented against the applicant. It was established that the applicant had been in possession of counterfeit currency, but the question was whether there was sufficient evidence to prove that the applicant knew the currency was counterfeit and had the intent to use it. The court also assessed whether the trial judge had failed to consider the statutory defences available to the applicant, which could have potentially led to an acquittal. The court considered whether the failure to properly evaluate these defences constituted a substantial miscarriage of justice.

The court found that the evidence was indeed sufficient to support the conviction, as it demonstrated that the applicant had knowledge of the counterfeit nature of the currency and intended to use it. However, the court also determined that the trial judge had not adequately considered the statutory defences available to the applicant, which could have provided a basis for an acquittal. This failure was deemed to be a substantial miscarriage of justice, leading to the quashing of the conviction and the ordering of a retrial.

The court ordered that the conviction be quashed and a retrial be held. The retrial was to ensure that the statutory defences were properly considered and that the applicant had a fair opportunity to present these defences. This decision underscored the importance of ensuring that all available defences are properly evaluated in criminal proceedings to uphold the principles of justice.

Orders