Wicks v Marsh; ex parte

[1993] QCA 139

[1993] QCA 139

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 266 of 1992

Brisbane

[Wicks v Marsh]

DEBRA ANN WICKS

(Applicant)

- v -

DANIEL JOSEPH PATRICK MAXIMILIAN MARSH

Ex parte: DEBRA ANN WICKS

PINCUS J.A. DAVIES J.A. SHEPHERDSON J.

Judgment delivered 21/04/1993

REASONS FOR JUDGMENT - THE COURT

ORDER NISI MADE ABSOLUTE WITH COSTS. MATTER REMITTED TO THE

MAGISTRATES COURT TO PROCEED ACCORDING TO LAW.

CATCHWORDS:	CRIMINAL LAW - UNLAWFUL POSSESSION - Applicant charged with possession of goods "that may reasonably be suspected" of being stolen - complainant police officer knew goods were stolen - whether knowledge excludes suspicion - whether otherwise improper to charge with unlawful possession. WORDS AND PHRASES - "may reasonably be suspected" - whether includes belief or knowledge
Counsel:	J. Costanzo for the Applicant P. Nase for Respondent
Solicitors:	Director of Prosecutions for the Applicant Legal Aid office for the Respondent
Hearing Date(s):	18 March 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 266 of 1992
Brisbane
Before Mr Justice Pincus Mr Justice Davies Mr Justice Shepherdson
[Wicks v Marsh]

DEBRA ANN WICKS

(Applicant)

- v -

DANIEL JOSEPH PATRICK MAXIMILIAN MARSH

Ex parte: DEBRA ANN WICKS

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21/04/1993

This is an appeal by way of order to review a decision of a magistrate on 8 September 1992 dismissing a charge against the abovenamed, Daniel Joseph Patrick Maximilian Marsh, under s. 65 of the Crimes (Confiscation of Profits) Act 1989 that he had in his possession one Pensov facsimile machine reasonably suspected of being tainted property. Section 65 is in the following terms:

"(1) A person who receives, possesses, conceals, disposes of or brings into Queensland any money, or other property, that may reasonably be suspected of being tainted property commits an offence against this Act.

...
(2) Where a person is charged with an offence
against this section, it is a defence to the charge
if the person satisfies the court that he had no
reasonable grounds for suspecting that the property
referred to in the charge was derived or realized,
directly or indirectly, from some form of unlawful
activity."

The term "tainted property" is relevantly defined to mean "in relation to a serious offence ... property derived or realized, directly or indirectly, by any person, as a result of the commission of the offence"; and "serious offence" is defined relevantly to mean indictable offence.

The magistrate dismissed the charge because he concluded that the complainant police officer knew that the property, the subject of the charge, was stolen property, and by implication tainted property, before she charged the respondent with the charge and, in effect, that that knowledge excluded the application of s. 65.

The facts relevant to the matter are as follows. Police officers found the facsimile machine in the respondent's possession. If it matters, they probably then suspected that it was stolen. They later received information that a facsimile machine of that brand and carrying that serial number had been stolen. Each of the relevant police officers, the complainant, Constable Wicks, and Detective Senior Constable Richards, said, in answer to questions in cross-examination, that after receiving information about the brand and serial number of the machine she and he knew it to be stolen. But, again if it matters, that meant no more than they knew that they had received information, which they believed, that it had been stolen. A Mr Rance said that a facsimile machine of that brand and serial number had been stolen from the premises of a company with which he was associated.

The question of construction is this: does the phrase "may reasonably be suspected of being tainted property" in s. 65(1) include the case where there is more than a reasonable suspicion that the property is tainted property? In particular, does it include the case where the property is probably or even beyond reasonable doubt tainted property?

Section 64 of the Act, which states a more serious offence than that stated in s. 65, has some bearing on this question. It provides relevantly:

"...

(2) A person who engages in money laundering is

guilty of a crime.

...

(3) A person shall be taken to engage in money

laundering, if, and only if -

...

(b)  the person ... possesses ... any ... property, that is tainted property,

and the person knows, or ought reasonably to know, that the ... property is derived or realized, directly or indirectly, from some form of unlawful activity."

If the magistrate's decision is correct, and as we will show there is some authority to support it, the result would be that if, on the evidence before the magistrate, there was proof beyond reasonable doubt that the property was tainted property, the respondent would not be guilty under s. 65 but also would not be guilty of the more serious charge under s. 64 unless it could also be proved that he knew or ought reasonably to have known that the property was derived directly or indirectly from some unlawful activity. And of course he would not be guilty of receiving under the Criminal Code unless it could be proved that he knew that the property was stolen: Criminal Code, s. 433. It would be a curious construction of s. 65 if the stronger the reasonable grounds were for suspecting that the property was tainted property, the less likely it was that a person charged with possession of it would be guilty of an offence.

Uninstructed by authority, we would conclude that the phrase "that may reasonably be suspected of being tainted property" in s. 65(1) stated a minimum requirement only. To read it as stating also the maximum ambit of the section is not required as a matter of plain English and, moreover, as we have indicated, would lead to the illogical result that the stronger the grounds were for suspecting that the property was tainted, the less likely it would be that the person in possession of it was guilty of an offence. It is necessary, however, to consider whether there is any such authority requiring a contrary conclusion.

A useful starting point is R. v. Grace (1930) 30 S.R.(N.S.W.) 158. The provision considered in that case was similar in form to s. 65. Halse Rogers J., delivering the judgment of the Court of Criminal Appeal, said (at 163):-

"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 were some stronger feeling of mind than suspicion."

In that case, the accused, at the hearing, admitted that when he obtained the goods the subject of the charge, they were stolen property and, moreover, that he then knew that. That case is therefore directly in point and the above passage and the decision in that case accords with the view which we have earlier expressed.

On the other hand, there are cases upon analogous provisions in which a distinction has been made between suspicion on the one hand, which it is said would support a conviction under such a provision, and knowledge and, in the first of the cases referred to below, belief on the other, which it is said would not: Homes v. Thorpe [1925] S.A.S.R. 286; Henderson v. Surfield [1927] S.A.S.R. 192; Lenthall v. C.A. Newman [1932] S.A.S.R. 126; Hewitt v. O'Sullivan [1947] S.A.S.R. 384;

Fisher v. McGee [1947] V.L.R. 324; O'Brien v. Reitze [1972] W.A.R. 152. In Lenthall knowledge which would exclude suspicion was defined in this context as the "ability to testify to all the ingredients essential to the charge of a specific offence, without recourse to information and belief".

That definition was adopted in the later cases referred to above. The basis for the distinction thus drawn appears to be that mere belief is to be classified as a form of suspicion, and that to that extent the greater includes the lesser; but that knowledge is a state of mind of a quite different character.

The statutory provision considered in each of the above cases appears to have been construed as requiring someone to have had the suspicion that the property was stolen. Compare Vagrants, Gaming and other Offences Act 1931, s. 25: "having in possession ... anything whatsoever suspected of being stolen".

There may be something to be said for the view that where that is the case it is an abuse of English language to say that one suspects property to have been stolen, when one, for example, saw it stolen from one's possession. It is unnecessary for us to consider whether that view is correct. There is nothing in s. 65 which requires that construction. Nor, we would add, was there anything in the section considered in O'Brien which required that construction, that section being materially indistinguishable from s. 65.

The above authorities were considered by the Full Court of the Supreme Court of South Australia in Raynal v. Samuels (1974) 9 S.A.S.R. 264. There (at 272-273) the Court expressed sympathy with the trial judge's dissatisfaction in that case with the distinction between the concept of knowledge on the one hand and suspicion (including belief) on the other, and said that the ratio decidendi of Lenthall did not extend to the proposition that knowledge excludes the operation of the relevant provision. Rather, the Court in Lenthall decided only that belief does not exclude the section. The Full Court in Raynal expressly refrained from ruling on the correctness or otherwise of the dicta in Lenthall that knowledge ousts the provision.

There are, of course, gradations of belief or knowledge extending from a slight inclination of opinion to complete assurance. But in a practical sense the tribunal which determines the matter can never have that complete assurance. It can never have more than a strong belief based on what it is told. We would reject as applicable to the construction of s. 65 those dicta which, whilst accepting that a reasonable belief, even a strong one, would satisfy the test of being reasonably suspected, knowledge would not.

We must nevertheless consider the possibility that, in enacting s.65 in the form in which it did in 1989, the legislature intended the words of that section to bear the same meaning as that attributed to the similar provisions in the group of cases referred to above beginning with Homes and finishing with O'Brien. It is true that generally where the legislature enacts a provision after a similar provision has been judicially interpreted in another jurisdiction, the legislature is assumed to be aware of that judicial interpretation and to have intended that it be followed: Local Board of Health of Perth v. Maley (1904) 1 C.L.R. 702 at 715; National Phonograph Co. of Australia Ltd v. Menck (1908) 7 C.L.R. 481 at 529.

However, on many occasions courts have cautioned against too enthusiastic an application of this principle. For example, in R. v. Reynhouldt (1962) 107 C.L.R. 381 at 388, Dixon C.J. said:

"the view that in modern legislation the repetition of a provision which has been dealt with by the courts means that a judicial interpretation has been legislatively approved is, I think, quite artificial. To repeat what I have said before, the mechanics of

law-making no longer provide it with the foundation in probability which the doctrine was supposed once to have possessed".

See also Galloway v. Galloway [1956] A.C. 299 at 320; Bacon v. Salamane (1965) 112 C.L.R. 85 at 90-91; Farrell v. Alexander [1977] A.C. 59 at 74. In Flaherty v. Girgis (1987) 162 C.L.R. 574 at 594 Mason A.C.J., Wilson and Dawson JJ. stated:

"For the reason given by Dixon C.J. [in Reynhouldt], the suggested rule nowadays is little use as a guide and it will not be permitted to prevail over an interpretation otherwise appearing to be correct."

These observations are particularly apposite in the present case where the interstate interpretations are, except in the cases of Grace and O'Brien, of a different phrase, consist only of obiter dicta, do not reveal a wholly consistent approach (compare Grace with Lenthall, Hewitt and Fisher) and may not, according to the Full Court in Raynal, yet be settled. In this context, we do not believe that the re-enactment after interpretation presumption provides a sufficient basis for adopting an interpretation of s.65 which we consider to be illogical and incorrect.

The final argument raised by the respondent was that it is an abuse of process to use the summary procedure provided by s.65 to deal with "ordinary" cases of receiving: that is, cases where the prosecution has sufficient evidence to support a charge of an indictable offence such as receiving under s.433 Criminal Code. The respondent referred us to several authorities which have addressed the question of whether, where an indictable offence can clearly be made out, it is an abuse of process of the court to use provisions such as s.65 merely to deprive defendants of their right to trial by jury and the benefit of the ordinary presumptions of innocence: Homes at 291; Lenthall at 130-132; Hewitt at 393-394, 395-396; Fisher at 330-331; R v. Kellert (1961) 80 W.N.(N.S.W.) 307; McCorry v. Olive; ex p. Olive [1963] Qd.R. 130 at 133-134.

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 proof demanded is of the same nature and before

the same kind of tribunal, in each case launched under s.93 [the equivalent of s.65], whether the evidence establishes a graver charge or not. What is deemed legally fair and just in one case is not rendered otherwise by such tactics. The motive for proceeding under the section is irrelevant, if the evidence discloses circumstances justifying a conviction..."

The point was left open by the Full Court on appeal in that case (at 395-396).

However, in the result, we find it unnecessary to express a final opinion on the correctness or otherwise of this argument.

The argument is not coextensive with the respondent's contention that "suspected" in s.65 excludes "known". To make out an offence of receiving under s.433, as we have already said, the prosecution must prove not only that the property in question was stolen property, but also that the defendant knew that this was so. The mere fact that the property can be said to be known to be stolen in the sense that this can be established beyond reasonable doubt before a tribunal is not sufficient to satisfy s.433, and therefore would not be sufficient to exclude the operation of s.65. There would also have to be evidence of the defendant's knowledge. As no such evidence was presented in this case, no abuse of process could have been involved in proceeding under s.65.

We therefore conclude that the magistrate erred in law in dismissing the charge under s.65. The order nisi should accordingly be made absolute with costs and the matter should be remitted to the Magistrates Court to proceed according to law.