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…

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 Wicks v Marsh; ex parte

Details

AGLC: Wicks v Marsh; ex parte [1993] QCA 139
Case: [1993] QCA 139
Decision Date: 21/04/1993

CaseChat Overview and Summary

The applicant, Wicks, was charged with possessing goods that could reasonably be suspected of being stolen. The police officer who made the charge was aware that the goods were stolen, raising the question of whether knowledge of theft negates the reasonable suspicion required for the charge. The case reached the court on an application for a writ of prohibition to prevent the continuation of the charge. The court needed to determine whether the officer's knowledge of the theft precluded the reasonable suspicion necessary for the charge, and whether it was improper to charge someone with unlawful possession when the officer was aware of the theft.

The court examined the language of the statute, focusing on the phrase "may reasonably be suspected." It considered whether this phrase included a belief or knowledge that the goods were stolen. The court held that the phrase "may reasonably be suspected" does not encompass knowledge; rather, it refers to a belief that is open to reasonable doubt. The court determined that the officer's knowledge of the theft did not preclude the applicant's charge, as long as the officer reasonably suspected the goods were stolen. The court also concluded that it was not improper to charge the applicant with unlawful possession, even if the officer knew the goods were stolen.

The applicant's application for prohibition was dismissed, and the writ was refused. The court found that the officer's knowledge of the theft did not negate the reasonable suspicion required for the charge, and the charge was not improper. The proceedings against the applicant continued as planned.

Orders