Winwood v Burk - [2002] TASSC 54

[2002] TASSC 54

CITATION: Winwood v Burk [2002] TASSC 54

PARTIES:  WINWOOD, Gary Paul
  v
  BURK, Stephen Maxwell

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 20/2001
DELIVERED ON:  27 August 2002
DELIVERED AT:  Hobart
HEARING DATES:  19 June 2002
JUDGMENT OF:  Underwood J

CATCHWORDS:

Criminal Law - Particular offences - Property offences - Receiving and possession of property stolen or reasonably suspected of having been stolen or unlawfully obtained - Possession of property stolen or suspected to be stolen or unlawfully obtained - Suspected or reasonably suspected or supposed to have been stolen or unlawfully obtained - Basis of reasonableness of suspicion.

Samoukovic v Brown A56/1993; Winwood v McLaughlin [2001] TASSC 123; O'Sullivan v Tregaskis [1948] SASR 12, followed.

Aust Dig Criminal Law [230]

Magistrates - Jurisdiction and procedure generally - Procedure - The hearing - Matters relating to decision - Obligations to state reasons for decision - Extent of obligation.

Pettit v Dunkley [1971] 1 NSWLR 376 at 382; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259; Xiong v McCarthy A45/1994; Australian Securities Commission v Schreuder A79/1994, followed.
Aust Dig Magistrates [128]

REPRESENTATION:

Counsel:
            Applicant:  G A Richardson
            Respondent:  M P Shirley
Solicitors:
            Applicant:  G A Richardson
            Respondent:  Director of Public Prosecutions

Judgment Number: [2002] TASSC 54
Number of Paragraphs: 19

Serial No 54/2002
File No LCA 20/2001

GARY PAUL WINWOOD v STEPHEN MAXWELL BURK

REASONS FOR JUDGMENT UNDERWOOD J

22 August 2002

By a complaint dated 7 October 1998, the applicant was charged with a breach of the Police Offences Act 1935, s39. As then enacted, it provided:

"No person shall be found in possession of any property reasonably supposed to have been stolen or unlawfully obtained without being able to give a satisfactory account of his possession thereof to the court before which he is charged therewith."

By way of particulars, the complaint alleged that on 24 September 1998, at Devonport, Detective Sergeant Burk found the appellant in possession of the items listed in an annexure to the complaint, which items were reasonably suspected by Detective Sergeant Burk to have been stolen or unlawfully obtained. The annexure listed no less than 307 items. It was an eclectic collection. The list included chainsaws, computer discs, tools, televisions, cameras, watches, paint and so on.

The complaint did not come on for hearing until 9 November 2001, a little more than three years after it had been laid. This delay was the subject of adverse comment by the learned magistrate. The hearing commenced and concluded within a single day. The learned magistrate found the complaint proved. A sentence of six months' imprisonment was imposed. The learned magistrate conditionally suspended the execution of the whole of that sentence. He said that but for the delay, the sentence would have been one of immediate custody.

The applicant seeks a review of his conviction upon the following grounds:

"1 The Learned Magistrate erred in fact and/or in law in convicting the applicant…

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 Winwood v Burk

Details

AGLC: Winwood v Burk [2002] TASSC 54
Case: [2002] TASSC 54
Decision Date: 27 August 2002

CaseChat Overview and Summary

In this case, the applicant, Gary Paul Winwood, appealed against his conviction for possession of property reasonably suspected to have been stolen or unlawfully obtained, as charged under section 39 of the Police Offences Act 1935. The appeal was heard by the Supreme Court of Tasmania. The primary issues before the court were whether the learned magistrate erred in fact or law in convicting the applicant and whether the learned magistrate provided adequate reasons for his findings. Specifically, the court had to determine whether the detective had a reasonable belief that the property found was stolen or unlawfully obtained, and whether the applicant's account of his possession of the property was unsatisfactory.

The court found that while the detective's initial testimony did not specifically link each item to known stolen property, the cross-examination revealed significant factors supporting the detective's belief, such as the quantity and nature of the items, the condition of some items, and their placement at the applicant's residence. The court held that these factors provided sufficient evidence for the magistrate to reasonably conclude that the detective's suspicion was based on reasonable grounds. However, the court also found that the magistrate's reasons for rejecting the applicant's account were inadequate. The reasons were too vague and general, making it difficult to properly examine them on appeal. The court concluded that the magistrate's failure to provide adequate reasons constituted an error of law.

The motion to review was allowed. The conviction and penalty were quashed, and the complaint was remitted to another magistrate for a hearing in accordance with the law.

Orders