Whittle v Brown
[2011] WASC 143
•22 JUNE 2011
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 RespondentBRADLEY 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, valued at $1,099 the property of Ceramic Tiles Centre Pty Ltd which had been stolen which the accused well knew.
The offence of possessing stolen or unlawfully obtained property is contrary to the Criminal Code (WA) s 428(1). The offence of receiving is contrary to the Criminal Code s 414 and the offence of possession of counterfeit money is contrary to the Crimes (Currency) Act 1981 (Cth) s 9(1)(a).
Proceedings on the charges
On 1 October 2010 the appellant, who was represented by counsel, appeared before the presiding magistrate in the Joondalup Magistrates Court and confirmed her pleas of not guilty to the above charges. The prosecutor advised the court that he would read the prosecution statement of material facts, which he said would be admitted by the appellant. The appellant's counsel said that the appellant would make the admissions as sought. He specifically made the admission that all the property the subject of the charges was located in the appellant's house on the dates alleged and also that there were drugs and other related paraphernalia located in the house. So far as it is relevant to the appeal, the statement of facts read by the prosecutor was as follows:
First in relation to the counterfeit money. This was at 11.50 pm on 4 December 2008, detectives from the organised crime squad attended the home address of the [appellant], ... in Craigie, and executed a misuse of drugs search warrant. The [appellant] was initially present for the search but then left the premises in an ambulance, seeking medical attention. The bedroom of the [appellant] was … opened with a key supplied by him [sic]. Within the bedroom, near a fax machine, police located a counterfeit Australian $50 note.
In relation to the receiving matter, 6 am on 29 April 2009 detectives … attended that address, ... in Craigie and executed a search warrant under the Misuse of Drugs Act. The [appellant] was present at the time, then she left the premises to receive medical attention at a hospital before returning to the premises.
During the search of the [appellant's] bedroom police located a black Toshiba laptop computer inside a blue and grey case next to her bed. When spoken to by police she refused to answer any questions.
...
In relation to the other charges, again during that search, the search of the bedroom located a Toshiba laptop computer on the bed, an Acer laptop computer on the bedside table, an Acer laptop computer in a black case next to the bed, and an HP Pavilion laptop computer inside the cupboard in the ensuite. Again, she refused to answer any questions to police at the time.
During that search there were also a number of drugs that were found which the prosecution would be asking the court to make an inference in relation to those drugs under subsequent conviction for which she is serving a term of imprisonment at the moment.
...
The address had a drug, namely meth amphetamine, with intent to sell or supply to another. Again, there was a possession of cannabis with intent to supply. Convictions were recorded for those, ma'am. Again, we would be saying we would seek to make an inference on that. ... The details of those drugs, ma'am, in the accuseds' bedroom police found six small clip‑seal bags containing approximately 2.17 grams of meth amphetamine in a small cardboard box on the accuseds' bed.
Also inside the box were four small clip‑seal bags containing six Ecstasy tablets, weighing approximately 1.27 grams. A large clip-seal bag was also located on the bed, containing 42.35 grams of meth amphetamine, and a small clip‑seal bag containing 3.8 grams of meth amphetamine. A large clip‑seal bag containing approximately 15.2 grams of cannabis head material of located next to the meth amphetamine on the … bed, …
A red plastic lunchbox was located on the side table containing … 5 clipseal bags containing cannabis head material and loose cannabis totalling approximately 34 grams. Also in a lunchbox was a cardboard box that contained … a methamphetamine rock weighing approximately 5.27 grams. In a heart‑shaped cardboard box on the accused's bedside table was a small clipseal bag containing approximately 0.1 grams of methamphetamine.
In a wooden box located inside the bedside cabinet was a small clipseal bag containing cannabis … totalling approximately 10 grams. During the search of a pantry cupboard in the kitchen police located a concealment container that was painted to look like a Heinz spaghetti can. Inside this container a large clipseal bag containing 21 grams of cannabis head. Also along with this was two sets of scales, clipseal bags … and cash to the value of $1470 (ts 1/10/10, pages 3 ‑ 6).
The prosecutor then made a concession that immediately prior to the police entering the premises, a person by the name of Brent arrived. He left fairly quickly and was not interviewed by the police.
The prosecutor also tendered photographs of all the laptop computers seized at the appellant's home.
The prosecution called Nicholas John Giancola who gave evidence that he purchased a Toshiba Satellite Pro laptop in March 2008 for $1,099. There was no dispute that the serial number of the laptop computer purchased by Mr Giancola was the same as the serial number of the Toshiba laptop computer located next to the appellant's bed, being the computer the subject of the receiving charge. Mr Giancola said that in March, April 2009 his motor vehicle was broken into and the computer was stolen from it. He said that the computer was contained in a black carry bag with a long strap. Mr Giancola said that his then employer, Ceramic Tile Centre Pty Ltd, was the owner of the computer. The prosecutor closed the prosecution case at the end of Mr Giancola's evidence.
The appellant gave evidence. She acknowledged that, after pleas of guilty, she had been sentenced in the Perth District Court on 8 December 2009 to 6 years' imprisonment for possessing a number of different drugs with intent to sell or supply them to others. She had also pleaded guilty to the unlawful possession of $6,000 and a further sum of $1,450. She testified that she was not guilty of the charges the subject of this appeal. The appellant said that at the time she was arrested she had a bad drug habit but that she had not stolen anything. She was 48 years of age. She said that at the time she was charged she lived with her children who were aged 15, 17 and 20.
In respect of the receiving charge, the appellant said that she had nothing to do with the theft of the Toshiba computer. She said that her friend, Withoon Seerathong (Joey) told her that it was his laptop and that he had lost the power cord to it. He had asked her if she had a power cord which would fit the computer. She said that she had a look and she did not have a power cord but that Joey did not come back to pick up the laptop. The appellant said that she put the computer in a spare laptop bag and put it in the place where the police found it. She was waiting for Joey to come and pick it up.
The appellant testified that she had a lot of power cords because her children had a number of electronic toys and appliances. She said she had the computer for a few weeks prior to the police attending her home. The appellant said that after she found out that she did not have a power cord which fitted the computer, she was 'pretty sure' she had rung Joey to tell him to come and pick it up. The appellant said that Joey had not told her where he got the laptop from and she had no idea that it had been stolen.
In respect of the unlawful possession charge the appellant testified that many years earlier she bought her first Acer laptop computer, in new condition, for $1,200 from a friend called Glen Zumich. She did not have a receipt for it. She said that it had developed a blank blue screen. She asked a friend, called Brent, to look at it. Brent's friend who was a 'computer geek' also looked at it and he said that it could not be fixed. It was in that context that she had purchased the second Acer computer for $100 from Brent who had bought it from his friend, the computer geek.
The second Acer laptop computer now had some frozen keys and did not work. It was also too slow. Attempts had been made to change the hardware in it so it would go faster but those efforts did not work.
In respect to the second Toshiba laptop computer, the appellant testified that Brent told her that he had another friend who was upgrading his laptop and selling his old one. He told the appellant that it was better than the second Acer computer. Brent brought the Toshiba laptop over for her to look at and she paid him $400 for it. The appellant testified that the transaction had taken place probably about a year before she was arrested in April 2009.
In respect of the Hewlett Packard computer, the appellant said that it belonged to a friend called Mark Flood, who lived in Mullaloo. She said that since she had been charged she had tried, unsuccessfully, to find him. The appellant said that Mr Flood initially visited her home to use her computer and her wireless internet connection. However her children complained that they could not use the computer whilst Mr Flood was on it, so Mr Flood brought his own computer over and connected it to her wireless internet connection. She said that on one such occasion Mr Flood left his computer in her computer room. She said that she picked it up and put it in the cupboard so that her children did not play with it. She said that she last saw Mr Flood using the computer only a day or two before she was arrested.
In respect of the counterfeit note, the appellant testified that she found it in her purse and she had no idea how it had got there. She said that before she went out one night she pulled it out of her purse and saw that it was fake. She thought she left it on top of her printer. As it was night time and the banks were shut, she said that she thought she would take it to the bank in the morning, because that is 'what you do with fake $50 notes'. She locked her room and left the house. She said that on the same evening the police stopped her whilst she was driving, searched her home and found the note where she had left it.
In cross‑examination, the appellant said that she had known Joey for about three years through his brother. The appellant said that she had been present when Joey had taken methylamphetamine on a number of occasions and that she knew he was in prison on firearm charges. The appellant said she was not aware that Joey had convictions for supplying drugs. The appellant said that she had dropped in to see Joey at his home when he had asked her if she had a power cord.
The appellant said that she had met Brent through some friends who used drugs and that she had sold Brent drugs, a few times. She was aware that he had a methylamphetamine habit. She did not know his surname but she knew that he lived in Welshpool, where she had visited him. The appellant said that Brent had told her not to offer his computer geek friend drugs, as he was not a user.
She acknowledged that she had not met the person from whom Brent got the second Toshiba computer, she had not asked how old it was and she did not know how much it retailed for when new. She simply thought that $400 was cheap for a computer of that type and she trusted Brent. She said that she had used the second Toshiba for between six and eight months prior to her arrest.
In respect of the Hewlett Packard laptop computer, the appellant testified that Mr Flood had not tried to contact her to get his computer back. She said that she had been told that he had gone to her home on one occasion after she had been remanded in custody.
The appellant acknowledged that she had sold drugs to Mr Flood on more than twenty occasions, but she doubted that it was more than fifty. She said that when he was working she sold him drugs probably once a fortnight but when he stopped working she did not sell him drugs very often.
In respect of the counterfeit note, the appellant said in cross‑examination that one evening she planned to go out to pick up some drugs and to pay for them, on behalf of another person. She looked in her purse to see whether she had enough money to buy some drugs for herself at the same time. She noticed the counterfeit note as she counted the money in her purse. She noted that the feel of the note was different to the feel of the genuine notes. Otherwise, her evidence about the note was consistent with her evidence‑in‑chief.
It was put to the appellant that her son may have been under the impression that the counterfeit note was left in the lounge room or elsewhere in the house as a decoy for a burglar. That is, if somebody broke into the house and saw the note in an obvious spot they may have stolen the note and not looked for other items to steal. The appellant denied this explanation. She said that if her son had seen the note it would only have been if he walked into her bedroom whilst she was counting her money.
The second witness for the appellant was Glen John Zumich. Mr Zumich gave evidence that approximately five years earlier he was working for a telecommunications company which could purchase computers through a wholesaler. He said that the appellant had purchased an Acer Aspire or Espiron computer through him in this manner. He said that he had looked for the paperwork for the sale but had not been able to locate it.
Whilst giving evidence, Mr Zumich was shown the two Acer computers seized by the police and photographs of them. He identified one of the computers as being most likely the computer the appellant had bought. Mr Zumich was then shown all the seized computers and asked questions about them. It is not possible to understand Mr Zumich's evidence from reading the transcript because it is not clear which computer he was being shown at any particular stage in his evidence.
The next witness for the defence was Withoon Joe Seerathong. Mr Seerathong acknowledged that he was known as 'Joey'. Mr Seerathong was 29 years old, single and about to finish serving a term of imprisonment. He said that he had been in custody since the end of April 2009. He said that prior to going into custody he had seen the appellant 'briefly once, twice', in 2009. He said he could not recall having anything to do with the appellant about a laptop computer or giving the appellant a laptop computer so that she could try to get a power cord to fit it.
In cross‑examination, Mr Seerathong said that from late 2008 to when he went into custody he had seen the appellant once or twice with his mother to speak to her about his brother. He said that prior to being imprisoned, he had not given away any of his laptop computers. He also said that his memory was not very good about events prior to him going into custody as he had been using methylamphetamine at that time.
Mr Seerathong said that prior to being remanded in custody he lived at home in Canning Vale or with a friend in Scarborough. He said that he did not have any conversations with the appellant about a computer and he did not recall ever having had a Toshiba laptop computer. He said that the appellant had not visited his parents home before he went into custody but she had possibly visited him at his friend's home in Doubleview. Defence counsel then closed the appellant's case.
After hearing submissions from counsel, the magistrate reserved her decision. On 25 October 2010, her Honour delivered written reasons for convicting the appellant of receiving the Toshiba laptop computer and possessing the counterfeit $50 note. Her Honour found the appellant guilty of the unlawful possession of one Acer laptop computer, a Toshiba laptop computer and a Hewlett Packard Pavilion laptop computer. She found the offence not proven in respect of the Acer laptop computer which Mr Zumich testified had been purchased by the appellant.
Magistrate's reasons
In respect of the unlawful possession charge, the magistrate said that the disputed issue was whether the computers the subject of the charge were reasonably suspected of being stolen or otherwise unlawfully obtained. She said that element of the offence required her to reach an objective conclusion on the evidence as to whether or not the computers might reasonably be suspected of being stolen or unlawfully obtained: Ryan v Dimitrovski (1996) 16 WAR 457; McLennan v Campbell [2003] WASCA 145. Her Honour noted that the test was not whether the police, at the time of seizure, had the relevant suspicion.
Her Honour said that in order to reach a conclusion on this element of the offence she must be satisfied beyond reasonable doubt that one reasonable suspicion open on the evidence is that the computers in question might have been stolen or unlawfully obtained. In order to reach a conclusion on this issue she stated that she had to consider all the surrounding circumstances and the particular circumstances which related to the charge. Her Honour noted that a reasonable suspicion that something had been stolen or unlawfully obtained must fall short of a certainty that they had been so obtained.
Her Honour also referred to the dicta of Templeman J in Hoskins v Ramsden [2008] WASC 28 where his Honour said:
In regard to the charges in which I am satisfied there is a reasonable suspicion that the items particularised have been stolen or unlawfully obtained, the onus of proof shifts to the two accused to prove on the balance of probabilities that they had no reasonable grounds to suspect that the items were stolen or unlawfully obtained [68].
In respect to the offence of possessing the counterfeit money, her Honour said that the prosecution had to prove beyond reasonable doubt that the appellant had in her possession a counterfeit $50 note and that she knew it to be counterfeit money. Her Honour noted that there was no dispute that the appellant was in possession of the counterfeit note and her Honour noted that the appellant said that she had only realised on 3 December 2008, when she cleaned out her purse, that the note was a counterfeit note and that she had left it in her room stating that she was going to take it to the bank the following day.
With respect to the offence of receiving, the magistrate stated that the prosecution must prove beyond reasonable doubt that the appellant received the Toshiba laptop computer knowing that it had been stolen.
Her Honour then turned to the evidence. After summarising the evidence of the appellant, Mr Seerathong and Mr Giancola about the Toshiba laptop computer the subject of the receiving charge her Honour said:
The Toshiba laptop was stolen from Mr Giancola's motor vehicle. Mr Seerathong did not tell [the appellant] that it was his computer. He has never seen the computer before. He was a heavy drug user and [the appellant] was a drug dealer and drug user. [The appellant's] explanation for her possession of the computer is not supported by Mr Seerathong's evidence. The only reasonable inference is that [the appellant] knew that the computer was stolen and obtained it in exchange for drugs [17].
Her Honour found that the prosecution had proved beyond reasonable doubt that the Toshiba laptop computer was stolen and that the appellant knew that it was stolen.
In respect of the possession of the counterfeit note, the magistrate summarised the appellant's evidence and then said:
I do not accept [the appellant's] denial as being credible. [The appellant's] lifestyle was buying and selling drugs. She would not take the counterfeit note with her to buy drugs, but it was left in a prominent position in her bedroom, once she left the house. [The appellant's] evidence lacked credibility, that she only discovered the counterfeit note that day.
Her Honour then found the offence proven.
In respect of the unlawful possession charge, her Honour summarised the evidence and found that the appellant purchased the first laptop computer from Mr Zumich. Her Honour continued:
There is no corroborating evidence that the other Acer laptop, the Toshiba laptop or the HP Pavilion laptop were legitimately obtained by [the appellant].
[The appellant] was operating as a drug dealer. Stolen or unlawfully obtained items were exchanged for drugs.
I am satisfied beyond reasonable doubt that one reasonable suspicion given on the evidence is that the computers either were stolen or unlawfully obtained. I enter a conviction.
Resolution of the appeal - Receiving
The appellant's complaint is that the respondent did not lead any direct evidence which established that she knew or suspected that the Toshiba laptop was stolen and that she had received it with that knowledge. She says that her evidence was contrary to that proposition. The appellant submits that, despite that evidence, the magistrate found not only that she knew that the computer was stolen but also that the appellant had obtained it in exchange for drugs. The appellant submits that in so finding, her Honour erred by reversing the onus of proof and by drawing inferences that were unsupported by the evidence.
At trial, it was not in contest between the parties that the relevant Toshiba laptop computer which was found in the appellant's possession by the police on 29 April 2009 had been stolen from Mr Giancola's motor vehicle in March or April of the same year. The only issue for the magistrate was whether, when the appellant received the Toshiba laptop computer, she knew that it had been stolen.
There was no direct evidence that the appellant knew that the computer had been stolen and she gave evidence denying that she did. This does not mean that it was not open for the magistrate to conclude otherwise.
The magistrate had to determine the appellant's state of mind at the time she came into possession of the laptop computer. Where, as in this case, there is no evidence by way of an admission as to an accused person's state of mind, a state of mind consistent with guilt can only be established by way of inference from all the surrounding circumstances, including from what the accused has said or done at or around the relevant time.
A circumstance which may be taken into account by a finder of fact on a receiving charge is the accused person's possession of recently stolen goods. That fact may itself be sufficient to enable an inference of guilty knowledge to be drawn, if the accused offers no explanation to account for the possession or if the finder of fact is satisfied that the explanation offered is untrue. The doctrine of recent possession was explained and applied in Laurens v Willers [2002] WASCA 183 (EM Heenan J) and Maslin v Searle [2010] WASC 146 (Simmonds J).
Although the magistrate did not refer to the doctrine of recent possession, I think it is clear from her findings that she relied upon that doctrine in order to convict the appellant. That is, in [17] of her written reasons for decision, her Honour found that Joey did not tell the appellant that the computer was his computer and that Joey had not seen the computer before he gave evidence. Further, her Honour found that the appellant's explanation for her possession of the computer was not supported by Joey's evidence. Thus, the magistrate was satisfied that the appellant's explanation for her possession of the Toshiba laptop was untrue.
Her Honour did not specifically address the issue as to whether the appellant's unexplained possession of the Toshiba laptop computer constituted 'recent possession'. The concept of 'recent possession' was considered by O'Loughlin J in Khalil v The Queen (1987) 44 SASR 23, 35 ‑ 36. His Honour noted that there is no fixed period of time which in all cases will constitute recent possession. The period is relative to the type of property. That is, a common type of property, such as money, which would not attract a person's attention if it was transferred to them in the ordinary course of an exchange, would have a very short period of time within which it could be said that the recent possession of it would enable a finder of fact to draw an inference against the accused. On the other hand, an uncommon item which would attract enquiry and 'fix itself in the memory of a man into whose possession it came' would have a longer period of time which would constitute 'recent possession'.
The cases referred to by O'Loughlin J indicate that a matter of months is, generally speaking, not considered to be outside of the period of recent possession, at least for items which may attract some notice.
Thus, the magistrate was satisfied that the appellant was in recent possession of the stolen Toshiba laptop computer and that she had failed to give a possibly true explanation concerning how she came to be in receipt of it. These findings alone would have been sufficient to enable the magistrate to find that the appellant was guilty of the offence of receiving.
The magistrate was also entitled to take into account the following matters in determining that the appellant was guilty of the charge of receiving. The stolen computer was found beside the appellant's bed. There were four other laptop computers in the appellant's home; three of which were in her bedroom. On the appellant's bed there were quantities of methylamphetamine, ecstasy and cannabis. The appellant was a drug dealer. It is a notorious fact that some drug users, without a legitimate source of income to support their habit, steal and sell stolen goods in order to obtain funds to purchase drugs. It is also a notorious fact that drug dealers sometimes accept stolen goods in exchange for drugs or otherwise receive stolen goods from their drug using associates. The appellant did not have any proof of purchase or other documents associated with the computer.
The appellant complains that the magistrate's finding, essentially, reversed the onus of proof. I understand why a lay person may think that but the doctrine of recent possession is not inconsistent with the prosecution's onus to prove a charge. An accused is not under an obligation to give a reasonable explanation but if he or she does not do so, the prosecution may well be able to prove the charge by proving that the accused was in possession of recently stolen property. This was confirmed in the joint judgment in Bruce v The Queen [1987] HCA 40; (1987) 74 ALR 219 where their Honours said:
Where an accused person is in possession of property which is recently stolen, the jury is entitled to infer as a matter of fact, in the absence of any reasonable explanation, guilty knowledge on the part of the accused.
The magistrate was entitled to come to the conclusion, in the absence of a reasonable explanation from the appellant, that she had received the Toshiba laptop computer knowing it to have been stolen.
The magistrate's finding that the computer was obtained in exchange for drugs was superfluous. Also, there was insufficient evidence to support the finding to the standard of beyond reasonable doubt. It was no more than an inference, available on the evidence. However, as it was an unnecessary addition to the magistrate's reasons, it is not an error that led to a substantial miscarriage of justice.
The appeal so far as it relates to the receiving charge is dismissed.
Resolution of the appeal - Unlawful possession
The Criminal Code (WA) s 428 states:
(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 an offence and is liable to imprisonment for 2 years and a fine of $24 000.
(2)It is a defence to a charge of an offence 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.
The section, which was only introduced in 2004, has been considered in Hoskins v Ramsden (Templeman J) and Marzano v Procopis [2009] WASC 332 (EM Heenan J). In the latter case, EM Heenan J said that there were three elements of the offence, namely:
(a)possession;
(b)of a thing capable of being stolen; and
(c)that thing is reasonably suspected to be stolen or otherwise unlawfully obtained.
In this case, the only element in issue was whether the laptop computers were reasonably suspected to be stolen or otherwise unlawfully obtained.
The appellant does not dispute that the issue for the magistrate was whether she was satisfied that there was a reasonable suspicion open on the evidence that the laptop computers in question might have been stolen or unlawfully obtained.
The appellant complains about the magistrate's reasons at [25] of her written reasons for decision, where her Honour said that there was no corroborating evidence that the second Acer laptop, the second Toshiba laptop or the Hewlett Packard Pavilion laptop were legitimately obtained by the appellant.
The appellant says that in so finding, her Honour erred in that she effectively reversed the onus of proof by requiring her (the appellant) to produce corroborative evidence to supplement her own evidence. She says that this view of the magistrate's reasoning process is made stronger by the magistrate's acquittal of the appellant on the charge relating to the first Acer computer, where corroborative evidence was available.
The onus of proof of the three elements of the offence is on the prosecution. Proof of those elements does not require the prosecution to negative the matter referred to in s 428(2). Rather, if an accused wishes to rely on s 428(2), he or she has an evidentiary and legal onus to prove on the balance of probabilities that at the time he or she was in possession of the thing, he or she had no reasonable grounds for suspecting that the thing was stolen or unlawfully obtained. An accused will be guilty of the offence if the prosecution proves beyond reasonable doubt the three elements of the offence and, if it is raised on the evidence, the accused does not prove on the balance of probabilities that at the time he or she was allegedly in possession of the thing, he or she had no reasonable grounds for suspecting that the thing was stolen or unlawfully obtained.
The appellant's counsel submitted to the magistrate that the prosecution case failed to establish that there was a reasonable suspicion open on the evidence that the appellant was in possession of laptop computers that were reasonably suspected to be stolen or otherwise unlawfully obtained. Secondly, he submitted that if the court was satisfied beyond reasonable doubt of that matter, the appellant's evidence should have satisfied the onus on her of proving on the balance of probabilities that at the time she was in possession of the laptop computers, she had no reasonable grounds for suspecting that they were stolen or unlawfully obtained.
Despite the two issues being raised by defence counsel, the magistrate only made findings in respect of the elements of the offence. Her Honour's findings in [25] are part of her reasoning towards her conclusion in [27] that the elements of the offence had been proven. She did not make a finding in regard to whether the appellant had satisfied the onus on her in respect of the defence in s 428(2). I am left with the distinct impression that the magistrate overlooked the defence. A magistrate's duties in respect of the content of his or her reasons are set out in the Magistrates Court Act 2004 (WA) s 31
In my opinion, the reasons of the magistrate failed to identify the Criminal Code s 428(2) as being part of the law that she applied in coming to her decision. It is clear that her Honour considered that the prosecution had proved beyond reasonable doubt the three elements of the offence. Her Honour was entitled to come to this view on the evidence, which included any explanation given by the appellant. Having come to the conclusion that the elements of the offence had been proven, it was incumbent upon the magistrate to then consider the defence in s 428(2). Whilst the Magistrates Court Act s 31 does not require a magistrate to canvas all legal issues arising in the case, the defences in s 428(2) was such an important issue that it had to be expressly canvassed in the magistrate's reasons. The magistrate erred in failing to do so.
The only issue for me is whether I ought to apply the Criminal Appeals Act 2004 (WA) s 14(2) which states that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
I have carefully considered whether I ought to apply this proviso and have decided that it is inappropriate that I do so. Whilst it is fairly clear from the magistrate's reasons that she did not believe some portions of the appellant's evidence and was sceptical about explanations given by her, the magistrate did not make findings directly relevant to s 428(2). In these circumstances, I do not believe that it would be just to apply the general negative sentiments expressed by the magistrate so as to turn them into specific negative findings on the matters that were relevant to s 428(2). The appellant is entitled to have the charge determined according to law, that is, for the magistrate who has heard all the evidence to state the relevant legal principles, and then to apply them to the facts as found by that magistrate. The magistrate failed to do that in relation to the defence in s 428(2). I would allow the appeal so far as it relates to the charge of unlawful possession.
Resolution of the appeal - Possession of counterfeit currency
The Crimes (Currency) Act 1981 (Cth) s 9 relevantly states:
(1)A person shall not:
(a)have in his or her possession counterfeit money (not being an excepted counterfeit coin), knowing it to be counterfeit money; or
…
(1A)Subsection (1) does not apply if the person has a reasonable excuse.
Note:A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).
(2)It is a defence to a prosecution of a person for an offence against subsection (1) in relation to the possession of counterfeit money or a counterfeit prescribed security if the person charged establishes to the satisfaction of the court:
(a)that he or she did not make the counterfeit money or counterfeit prescribed security; and
(b)that he or she did not, after the time when he or she first learned that the counterfeit money or counterfeit prescribed security was counterfeit money or a counterfeit prescribed security or the time when he or she acquired the counterfeit money or counterfeit prescribed security, whichever was the later time, have a reasonable opportunity to surrender it to a member of the Australian Federal Police or of the police force of a State or Territory or to any other person prescribed for the purposes of this section.
The appellant's counsel's submissions to the magistrate in respect of this offence were unhelpful. He submitted that there was no evidence of any guilty knowledge by the appellant of the note being a counterfeit note, no evidence that the appellant had attempted to use it and no evidence that she was responsible for producing it. The latter two matters were not required to be proved by the prosecution. The first matter was never in issue and the submission was contrary to the appellant's evidence that on seeing and handling the note she knew that it was a 'fake note'.
On appeal, the appellant submits that her evidence satisfied the evidentiary onus under s 9(1A) and/or the magistrate erred in failing to consider the defence raised by way of s 9(2).
Whatever be the meaning of 'reasonable excuse' in s 9(1A), on the facts and evidence of this case, the reasonable excuse relied on by the appellant in respect of s 9(1A) was the same excuse that the appellant relied upon to discharge the onus in s 9(2). That is, she said that she had only found the counterfeit note on the evening she was arrested by the police and she had not had an opportunity to hand it in to the bank or other authority prior to the police arresting her.
In respect of whether this was a reasonable excuse for the purpose of s 9(1A), the magistrate expressly rejected the appellant's evidence in this regard. She was entitled to do so. Once the magistrate rejected her evidence, there was no evidence upon which the magistrate could rely in order to conclude that the appellant had a reasonable excuse for possession of the counterfeit note.
I do not criticise the magistrate for failing to consider s 9(2) as it was not raised by defence counsel. However, even if I accept that the magistrate should have considered the defence because there was evidence to support it and therefore it was an error for the magistrate not to consider s 9(2), I consider that the findings made by the magistrate in respect to the appellant's evidence on this issue are sufficient to enable me to conclude that the error did not lead to a substantial miscarriage of justice: Criminal Appeals Act s 14(2).
This is because the magistrate expressly made a finding that she did not believe the appellant's evidence concerning discovering her possession of the counterfeit note on the day that she was arrested. Again, once that evidence was rejected, there was no evidence on which the magistrate could conclude that the appellant had established on the balance of probabilities that she did not have a reasonable opportunity to surrender the note to a police officer or other prescribed person.
The appeal so far as it relates to the possession of the counterfeit note is dismissed.
Conclusion
For the above reasons I would allow the appeal in respect of the charge of possession of the laptop computers which were reasonably suspected to be stolen or unlawfully obtained. I set aside the conviction on this charge and remit it to the Magistrates Court to be heard according to law by another magistrate.
The appeal so far as it relates to the charge of receiving the Toshiba laptop computer and possession of the counterfeit note is dismissed.
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