Winwood v Burk
[2002] TASSC 54
•27 August 2002
[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 as the conviction was not supported by the evidence in that :-
(a)There was no evidence upon which the Learned Magistrate could properly have based a finding that at the time Detective Burk found the appellant in possession of the property itemised in complaint numbered 60302/98 Detective Burke [sic] had a reasonable belief that each such item of property was stolen or unlawfully obtained.
(b)The Learned Magistrate should not have rejected the appellants [sic] account of his possession of those items as being unsatisfactory.
2 The Learned Magistrate erred in law in not providing adequate reasons for his findings :-
(a)That Detective Burk had a reasonable belief that the property found in the appellants [sic] possession was stolen or unlawfully obtained.
(b)Rejecting the appellants [sic] account of his possession of that property."
Before the applicant was guilty of the offence charged, the learned magistrate had to be satisfied beyond reasonable doubt that he had been found by Detective Sergeant Burk in possession of the goods listed, or some of them, and that Detective Sergeant Burk, supposed, on grounds that the learned magistrate was satisfied were reasonable, that the goods had been stolen or unlawfully obtained (Weston v Smith [1963] Tas SR 27; Neasey & Ors v Strickland (1995) 5 Tas R 228). The finder's supposition must be concomitant with the finding (Burnett v Brown (1929) 24 Tas SR 23; Mackey v Gangell [1952] Tas SR 31). The reasonableness of the supposition must be established by clear evidence (Samoukovic v Brown A56/1993; Winwood v McLaughlin [2001] TASSC 123). If so satisfied, the learned magistrate also had to be satisfied on the balance of probabilities that the account for his possession given by the applicant to the court was not a satisfactory one.
The evidence established that on 24 September 1998, Detective Sergeant Burk and other police officers went to the applicant's home at Devonport armed with a search warrant. The search warrant related to drugs. However, the opportunity was taken to look for property. Detective Sergeant Burk opened his examination-in-chief by saying:
"A search was conducted of the premises and outbuildings and motor vehicles at the premises. During the course of that search I located a large number of items as listed in the complaint. I formed the opinion that all items that I'd recovered were stolen or unlawfully obtained."
With respect to whether his supposition was based upon reasonable grounds, Detective Sergeant Burk said in his examination-in-chief:
· all crime reports in the Devonport area "came across [his] desk" and he was aware of property that had been stolen and not recovered;
· the property found comprised a very considerable number of items;
· he had received reliable information that there was stolen property at the applicant's residence;
· he had information that people had been seen going into the premises with property and leaving without that property;
· "There were a number of items that were located which had missing concealed or obliterated serial numbers, there were a number of items which bore a name other than the defendant's. Some items were located in an area where they looked out of place."
Detective Sergeant Burk said that the applicant told him that he had obtained all the items within the previous 12 months. In his examination-in-chief, the only reference to specific items found were as follows:
· "I'd also located a Denon CD player in the lounge room of the premises. I was aware from discussions with persons that were members of my golf club that an item had been stolen from their property, which was very similar to what I located."
· "I was aware of a burglary at business premises in Don Road at Devonport where a large number of spray paint tins had been stolen and not recovered."
· "I was aware in the six months following my transfer to Devonport in January 1998 … there was at least seventy thousand dollars worth of hand and power tools stolen and not recovered, principally they included Makita brand items. In the rear yard I located a red saw horse or workbench which appeared to be in almost brand new condition. There were a large number of similar items such as car radio cassettes and other musical equipment, watches and other items."
Had Detective Sergeant Burk's evidence concluded at that point, with the exception of a few items, there might be substance in the complaint made by ground 1(a) of the notice of appeal, namely that no magistrate acting reasonably and properly instructed as to the law could have been satisfied beyond reasonable doubt that Detective Sergeant Burk's supposition that any particular item had been stolen or unlawfully obtained was based upon reasonable grounds. Apart from the items specifically mentioned and referred to above:
· Detective Sergeant Burk did not say that any of the property found was the same or similar to property stolen and not recovered and referred to in the crime reports that "came across [his] desk";
· Detective Sergeant Burk did not say his reliable information that there was stolen property in the applicant's residence included information that that property was the same or similar to any one of the 307 items annexed to the complaint;
· Detective Sergeant Burk did not say that his information that people had been seen carrying property into the applicant's house included information as to the nature of that property, nor whether any of it was the same as, or similar to, any one or more of the 307 items in the list annexed to the complaint.
However, the cross-examination of Detective Sergeant Burk explored the issue of reasonable grounds for his belief at some length. A number of items were chosen for specific reference. At the end of the cross-examination, Detective Sergeant Burk stated that he had inspected every single item and supposed with respect to each that it had been stolen or unlawfully obtained. As the cross-examination progressed, it became clear that significant factors in the formation of his supposition were:
· the quantity of items found;
· the fact that many of the items were not ones ordinarily found at a residence;
· the serial numbers of some of the items had been removed or partly obliterated and these items were found with other items;
· some of the items were found in places at the applicant's residence where such items are not ordinarily found.
In order to appreciate the significance of these factors, I append to these reasons for judgment, the annexure to the complaint which lists the property found and which Detective Sergeant Burk supposed was stolen or unlawfully obtained.
Mr G Richardson, who appeared as counsel for the applicant on the motion to review, submitted, quite correctly, that there was no specific evidence with respect to many items on the list. However, I do not accept Mr Richardson's submission that it follows that with respect to those items there was no evidence upon which the learned magistrate could have been satisfied to the requisite degree that Detective Sergeant Burk's supposition was reasonably based. In O'Sullivan v Tregaskis [1948] SASR 12, Napier CJ said at 16:
"It is manifestly impossible to enumerate or define all the circumstances that may reasonably attract suspicion to the property, but, for this purpose, regard may be had to the nature of the property, to the circumstances in which it has been found, and to the behaviour of the defendant, with respect to it. (Ex parte Patmoy (1944) 44 SR (NSW) 351 at p 357; LePoidevin v Hudson [1935] SASR 223, at p 230).
Speaking generally, it seems to me that suspicion is commonly, and not unreasonably, incited by the impression of abnormality or incongruity in the thing being in the possession of the person who has it, or in his dealings with it."
The significant factors to which I have referred constitute the evidence which could have satisfied the learned magistrate that Detective Sergeant Burk's supposition was based upon reasonable grounds. In the circumstances of this case, it was not necessary that each item be referred to individually before the learned magistrate could be satisfied with respect to the reasonableness of the supposition which Detective Sergeant Burk said he entertained with respect to every item on the list. Ground 1(a) is not made out.
There was a submission that the applicant had no case to answer. It was overruled and the applicant gave evidence of how he came to be in possession of the items set out in the list annexed to the complaint. At the conclusion of the evidence, the learned magistrate proceeded to give his reasons for the orders that he was about to make. The learned magistrate correctly identified the matters in respect of which the prosecution carried the onus of proof, including an obligation to establish reasonable grounds for the supposition Detective Sergeant Burk said he entertained. The learned magistrate then said:
"In relation to those limbs of the offence there is abundant evidence from the prosecution witnesses concerning those - concerning proof. And the burden has now shifted to the defendant to give his satisfactory account to this Court of his possession of those various items.
I say at the outset that I have heard nothing, quite frankly, but a load of twaddle from the defendant in evidence, as to that possession. It was the prosecutor, I think, who described the items as a veritable mountain of goods. And one of the witnesses in giving evidence described there having been seven trailer loads of goods go from the property. Whereas, at interview I believe the number was five trailer loads. But in any event, a number of trailer loads of this veritable mountain of goods, variously consisting of power tools, chainsaws, disc players, watches, Franz Liszt compact disc - which I would not have thought was to the defendant's taste, I might be wrong there - an Amstrad Portrax Studio, where he was, so he said, going to test his recording skills. Computer equipment including floppy disks. Spray paint. A video camera on a tripod. Various stereo systems, cameras, walkman's, an Australian flag, silver spoons, jewellery boxes and jewellery. A new pair of gumboots. And a list generally - and a guitar - a list generally of items one would not anticipate finding in the norm - in any normal residential dwelling. His explanation to this Court, that is, his evidence in this Court, is wholly unsatisfactory. I do not accept it. Variously, he has claimed that he bought the goods. That he had receipts. That he identified certain people as the sellers of that property, both in evidence and in his interview. At interview he adopted the notes taken by the police. And he has generally shifted his position, as to his possessions regarding these items. His explanation is unbelievable. It is unsatisfactory, and it’s certainly not a satisfactory account. And I find the complaint proved."
Grounds 2(a) and (b) of the motion to review complain that those reasons are not adequate and constitute an error of law. It is well established that a failure to give adequate reasons for judgment will constitute such an error. See 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.
I readily accept that magistrates have busy lists and it is unreasonable to expect them to deliver elaborate, well crafted reasons for judgment, particularly in straightforward cases such as this one. The reasons in a case such as this should identify the issues that the hearing has raised and state basic findings of fact which will determine those issues and give brief reasons for making such findings. Without those basic reasons, appellate scrutiny of the decision is not possible and an aggrieved litigant thereby denied access to justice.
In this case no finding of fact was made with respect to an issue that was clearly raised by the defence during the course of the hearing, namely, the reasonableness of the belief of Detective Sergeant Burk that he supposed that the property he found had been stolen or unlawfully obtained. A simple statement that there is "abundant evidence" concerning proof of an element in the offence that was put in issue at the outset is insufficient, in my view. Ground 2(a) is made out.
It also seems to me inappropriate to dismiss the applicant's account as "nothing … but a load of twaddle". There is an express finding that the applicant's account was unsatisfactory, but the reasons for it being unsatisfactory are scant. There is a reference to the applicant giving different accounts with respect to how he came by the property, but the reference is general and not related to any particular property nor to any part or parts of the evidence. There is no reference in the reasons for judgment to the claim by the applicant that he was given a lot of the property following a fire that he said occurred at his premises. There is no reference to which property the applicant said he had bought and for which he had receipts. The reasons do not make clear in what respect the applicant "generally shifted his position". I accept that this aspect of the case is substantially a matter of credit and in cases involving credit, elaborate reasons are not required. However, the generality of the learned magistrate's reasons for rejecting the applicant's account are so vague it is impossible to see upon what grounds his rejection was based. Had the learned magistrate identified two or three particular items, and found, for very brief reasons, with respect to those items that the applicant's evidence was not credible and then applied that finding to the whole of his evidence, no complaint could be made. However in this case the generality and brevity of the reasons for finding the applicant's account unsatisfactory are so vague it is not possible to properly examine them on appeal. Ground 2(b) is made out.
The motion to review is allowed. The conviction and penalty are quashed. The complaint is remitted to another magistrate for hearing in accordance with law.
ANNEXURE "A"
This is Annexure "A" as mentioned in the complaint on oath of Stephen Maxwell BURK dated 7/10/98.
Property List:
1 Philips Television
1 Stihl 056 Chainsaw
1 Ryobi Circular Saw
1 Stihl 032 Farmboss chainsaw
1 Red Golf Bag, set of Prosimmon golf clubs, balls, golf glove and wet weather gear
1 Red tool box containing various tools including sockets, handtools, spanners,
screwdrivers, pliars and wirestrippers
1 Denon compact Disc Player
1 pioneer equaliser
1 Makita Circular Saw
1 NEC Video Cassette Recorder
1 Makita Orbital sander
1 Boy London watch
1 Jag watch
l Alpine car radio cassette player
2 Dominator speakers
1 Uniden UHF Radio
1 Clarion Amplifier
1 Franz Liszt Compact disc
1 Sidchrome Proto socket set
1 Kenwood car compact disc player
1 Amstrad Porttrac studio
2 Speakers
1 Wagner Heat Gun
47 cans of Spray paint X
1 Metabo Grinder
1 Makita Grinder
1 Transarc Welder
1 Grey Fishing Tackle box containing various items of fishing equipment
1 Silver coloured diamante and rhinestone necklace
1 Optima computer, monitor and keyboard 2 Laser speakers
1 Olivetti printer
6 Computer compact discs
27 Floppy discs
1 Wooden box containing various rings, bracelets, watches, brooches and ornaments
1 Ingersol Rand Compressor
1 Supercraft Work Bench
1 Box of grinding wheels
1 Stihl 031 Chainsaw
1 pioneer 450 Chainsaw
1 Stihl high pressure water hose
1 Box containing tins of spray paint X
1 Box containing numerous pocket knives
1 Box of Ryobi air tools
1 pack of Air Impact Sockets
1 Impact Driver
1 Atlas Copco rattle gun
1 Red Spray drum
1 Lion bench grinder
1 Homelite chainsaw
1 Makita dropsaw
1 bag containing various chainsaw parts and accessories
3 McCulloch chainsaws
1 Stihl 015 chainsaw
1 Stihl 076 Chainsaw
1 Stihl 084 Chainsaw
1 Black and Decker lawn edger
1 set of number plates DN 7365
1 box containing various compact discs
3 Advertising carousels and cigarette advertising material
1 Blue back pack
1 Tosca bag
1 Samsung Video camera on tripod
1 NAD amplifier
1 NAD Pre Amplifier
1 Yamaha compact disc player
1 Sony Turn table
1 National video cassette player
1 Awa video cassette player
1 Valve amplifier
1 Panasonic phonefax
1 Technics sound system
1 Technics Compact disc player
1 Teac Shelf system
1 Sanyo radio cassette player
1 Sony 10 disc magazine
1 NEC television
1 220 watt speaker
2 GE speakers
1 GE 3 in 1 stereo
2 Philips Speakers
1 Philips stereo system
1 Vincen 200mm lens
1 Autotele lens
1 Zenit B camera
1 Soltron flash
1 Ricoh camera
1 pair of infra red earphones
1 Brother P touch
1 Sony walkman
1 Citizen mini television
3 Guitar cords
1 Suzuki guitar
1 Onyx guitar
1 Audition Guitar
1 pair Levis jeans and King Gee clothing
1 Australian flag
1 Graphic equaliser
4 Bose speakers
1 Pioneer speaker
1 Pioneer Amplifier
1 Awa cassette stereo
1 Sound 4 Cassette stereo
1 Philips car compact disc stereo
1 Car cassette player
1 Alpine car amplifier
1 Pearce Simpson car cassette player
1 Philips am radio
2 Sony Discman
1 Philips discman
1 golden Eye Television
6 Silver spoons in case
12 Silver forks in case
1 Monitor answering machine
1 Novelty smoking device in box
1 Rip Curl Watch
2 Fossati watches
1 Blue Marlin watch
1 Quartex watch
1 Q & Q watch
1 imitation Rolex watch
1 Holden watch
1 Jag Watch
1 Pulsar watch
2 Silver fob watches
1 Citron lighter
1 Silver ingot in case
1 Regal cameo necklace
1 Bracelet and necklace with a heart in old gold
1 Jewellery box containing various rings, chains and pendants
1 Box containing watches, ornaments, rings, pendants, ear rings and brooches
1 Large blue speaker
1 pair of new gumboots
1 Ge colour television
1 Box containing computer accessories
1 Block and tackle
1 Reziko airless spray gun
3 Ragini trowels
2 Bosch halogen driving lights
1 Devilbliss paint spray gun
1 Samson sandblasting gun
2 Fishing reels
4 Lawns bowls in a box
1 Yellow extension lead
1 Makita router
1 Makita drill box
1 Ryobi bench grinder
2 Sidchrome socket sets
1 Small Sidchrome socket set
1 Stanley socket set
1 Ramset tool box and contents
1 Rotorange tool box containing various hand tools
1 Electric fence kit
1 12 volt air compressor
1 Makita screw gun
1 Arlec battery charger
1 Makita planer
1 Ryobi planer
1 Makita orbital sander
1 Black and Decker sander
1 Ryobi angle grinder
1 RVB electric warning siren
4 Black and Decker circular saws
3 Makita circular saws
1 Ryobi mulit volt torch
1 Black and Decker drill
1 Ryobi engraver
1 Sher drill
2 Black and Decker drills
1 Skil drill
6 Ryobi drills
1 Black and Decker drill and battery
1 Mini colour television
1 Uniden scanner
1 UIIF amplifier booster
1 CIG welder
2 Panasonic video cassette recorders
1 ICI Kelvin watch
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