Winwood v McLaughlin - [2001] TASSC 123

[2001] TASSC 123

CITATION: Winwood v McLaughlin [2001] TASSC 123

PARTIES:  WINWOOD, Garry Paul
  v
  McLAUGHLIN, Colin David

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 14/2001
DELIVERED ON:  20 September 2001
DELIVERED AT:  Burnie
HEARING DATES:  20 September 2001
JUDGMENT OF:  Evans J
  Edited edition of reasons for judgment delivered orally
CATCHWORDS:

Criminal Law - Particular offences - Property offences - Receiving and possession of property stolen or reasonably suspected of being 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 and reasonableness of suspicion - "Reasonably supposed" stolen or unlawfully obtained - Partial acknowledgement of stolen goods.

Balmer v Southern [1956] Tas SR 6; Burnett v Brown (1929) 24 Tas LR 23; Director of Public Prosecutions v Barel (Unreported, Supreme Court of Victoria, 16 November 1992); Edens v Cleary [1975] 1 NSWLR 278; Hughes v Dempsey (1915) 17 WALR 186; Mackey v Gangell [1952] Tas SR 31; O'Garey v King [1972] Tas SR 136; Samoukovic v Brown A56/1993; Weston v Smith [1963] TAS SR 27, followed.
Dimitrovski v Ryan (1998) 72 ALJR 1172, referred to.
Police Act 1905 (Tas), s16.
Police Offences Act 1935 (Tas), s39.
Police Offences Act 1892 (WA), s69.
Aust Dig CL 14

REPRESENTATION:

Counsel:
             Appellant:  S Richardson
             Respondent:  J N Perks
Solicitors:
             Appellant:  G A Richardson
             Respondent:  Director of Public Prosecutions

Judgment Number: [2001] TASSC 123
Number of Paragraphs: 11

Serial No 123/2001
File No LCA 14/2001

GARRY PAUL WINWOOD v COLIN DAVID McLAUGHLIN

REASONS FOR JUDGMENT EVANS J

(DELIVERED ORALLY) 20 SEPTEMBER 2001

The applicant appeals against his conviction and sentence on a charge of being found in possession of property reasonably supposed to have been stolen or unlawfully obtained in contravention of the Police Offences Act 1935 ("the Act"), s39. The particulars of the charge detail 15 items or groups of items of property found in the applicant's residence on 4 May 1999. The applicant does not challenge the finding that he was in possession of the property.

The core ground of appeal is that the learned magistrate erred in being satisfied that the police officer responsible for charging the applicant, Sgt Frederick Rhodes, had a reasonable supposition that each of the items of property had been stolen or unlawfully obtained. Whilst Sgt Rhodes gave evidence averring that he held such a view, that is not of itself sufficient to satisfy this element of the offence. It must be established that Sgt Rhodes' supposition that the property was stolen or unlawfully obtained was reasonable; O'Garey v King [1972] Tas SR 136 at 138 and Samoukovic v Brown A56/1993 at 4. For a supposition to be reasonable, it must amount to more than mere imagination or conjecture, but may be something less than belief; Hughes v Dempsey (1915) 17 WALR 186 at 187, Mackey v Gangell [1952] Tas SR 31 at 42…

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 McLaughlin

Details

AGLC: Winwood v McLaughlin [2001] TASSC 123
Case: [2001] TASSC 123
Decision Date: 20 September 2001

CaseChat Overview and Summary

In the Supreme Court of Tasmania, Garry Paul Winwood appeals against his conviction and sentence for being in possession of property reasonably supposed to have been stolen or unlawfully obtained, in contravention of the Police Offences Act 1935, s39. The appeal focuses on whether the learned magistrate correctly determined that the police officer, Sgt Frederick Rhodes, had a reasonable suspicion that each item of property found in Winwood's residence was stolen or unlawfully obtained. Winwood does not dispute that he was in possession of the property but challenges the magistrate's finding regarding the reasonableness of Sgt Rhodes' suspicion.

The court had to determine whether the magistrate correctly assessed the reasonableness of Sgt Rhodes' suspicion that the property was stolen or unlawfully obtained. The court examined the evidence provided by Sgt Rhodes and Winwood's statements during the search of his residence. The court held that for a supposition to be reasonable, it must be more than mere imagination or conjecture, but less than belief. It must be supported by clear evidence and be concomitant with the finding of possession.

The court found that Sgt Rhodes' suspicion was reasonable for some items, such as the Cannon camera, Ibanez guitar, and laptop computer, based on Winwood's acknowledgment that these items were "probably hot." Similarly, the suspicion was reasonable for the two Samurai swords obtained from Phil Griffiths, who Winwood admitted provided him with stolen property. However, the court determined that the suspicion was not reasonable for the Les Paul guitar, studio electric guitar, Tekken play station game, and portable spray unit, as Winwood did not acknowledge that these items were stolen, and there was insufficient evidence to support a reasonable suspicion.

The appeal was allowed in part, and the conviction was varied by deleting the items for which the suspicion was found to be unreasonable. The court's decision highlights the importance of clear evidence and the need for a reasonable suspicion to be based on more than mere imagination or conjecture.

Orders