Castle v Farmer [2007] QDC 99

DISTRICT COURT OF QUEENSLAND CITATION: Castle v Farmer [2007] QDC 099 PARTIES: ROBIN RALPH CASTLE Appellant and KENNETH WALTER FARMER Respondent FILE NO: Appeal No BD 2581 of 2006 PROCEEDING: Appeal from Magistrates Court DELIVERED ON: 31 May 2007 DELIVERED AT: Brisbane HEARING DATE: 14 May 2007 JUDGE: Judge Brabazon QC ORDER: Appeal allowed CATCHWORDS: CRIMINAL LAW – POSSESSION OF PROPERTY STOLEN OR SUSPECTED TO BE STOLEN OR UNLAWFULLY OBTAINED – APPEAL - where appellant convicted of unlawful possession of suspected stolen property – appellant appealed against conviction and sentence – whether the findings of the Magistrate correct Summary Offences Act 2005, ss 16, 28 Police Powers and Responsibilities Act 2000, s634 Cases considered: Hadley v Perks (1866) LR 1 QB 444 ex parte Patmoy; re Jack (1944) 44 SR (NSW) 351 Gough v Braden (1993) 1 Qd R 100 Abbrederis (1981) 3 A Crim R 366 Abbrederis, unreported, HCA, 8 October 1981 R v Wong (1990) 49 A Crim Rep 184 Manley v Tucs (1985) 40 SASR 1 Brown v The Queen (1980-81) 147 CLR 503 Clarkson v Aspinall; Ex Parte Aspinall [1950] St R Qd 79 COUNSEL: Mr S McGhie, solicitor, for the appellant Mr M Hungerford-Symes for the respondent -- 1 of 15 -- 2 SOLICITORS: Richardson McGhie Solicitors for the appellant Director of Public Prosecutions for the respondent The Charge [1] In September 2005 Mr Castle was charged with an offence against s 16 of the Summary Offences Act 2005: “That on 30 June 2005 at Zillmere … he unlawfully possessed a thing, namely a red Toyota Land Cruiser, that was reasonably suspected of being stolen or unlawfully obtained.” [2] A trial was held at Brisbane on 24 April 2006. Judgment was reserved until 4 August 2006. The Magistrate found that all the elements of the offence were proved, and convicted Mr Castle. No conviction was recorded. He was fined $1,000, with three months to pay, in default 17 days imprisonment. [3] Mr Castle has appealed against both his conviction and sentence. The Law [4] Before turning to the facts, and the Magistrate’s reasons, it is necessary to understand the charge made against Mr Castle. [5] The Summary Offences Act 2005 defines particular offences that may be dealt with in a summary way. Sections 16 and 28 applied to this case: “16. Unlawful possession of suspected stolen property A person must not unlawfully possess a thing that is reasonably suspected of having been stolen or unlawfully obtained. Maximum penalty – 20 penalty units or 1 year’s imprisonment. 28 Evidentiary provision (1) … -- 2 of 15 -- 3 (2) In a proceeding for an offence against section 16, it is not necessary to prove that the police officer starting the proceeding knew anything had reasonably been stolen or unlawfully obtained, or that in fact anything had been stolen or unlawfully obtained, if the circumstances in which the property had been found gives rise to a reasonable suspicion that the property had been stolen or unlawfully obtained. Example – See the Police Powers and Responsibilities Act 2000 section 319A, for procedural safeguards a police officer must follow before charging a person with an offence against section 16 of this Act.” [6] Section 319A is now found in s 634 of the PPRA: “Safeguards for declared offences under Summary Offences Act 2005 (1) This section applies to an offence under the Summary Offences Act 2005 that is a declared offence for this Act. (2) A police officer who suspects a person has committed a declared offence must, if reasonably practicable, give the person a reasonable opportunity to explain – (a) … (e) if the offence involves possession of a thing that is reasonably suspected of being stolen or unlawfully obtained – how the person came to have possession of the thing. (3) If – (a) the person fails to give an explanation; or (b) the police officer considers the explanation given is not a reasonable explanation; or (c) because of the person’s conduct, it is not reasonably practicable to give the person a reasonable opportunity to give an explanation; … the police officer may start a proceeding against the person for the declared offence. (4) In this section, ‘declared offence’ means an offence against … section 16 of the Summary Offences Act 2005.” [7] These are provisions with a long history in the law. For example, see the explanations of them in Hadley v Perks (1866) LR 1 QB 444, ex parte Patmoy; re Jack (1944) 44 SR (NSW) 351 at 356, and Gough v Braden (1993) 1 Qd R 100. -- 3 of 15 -- 4 [8] Section 16 is notably different from its predecessors, in that there is no mention of the person charged giving an account of how he or she came to be in possession of the property. A provision of that sort was before the Queensland Court of Criminal Appeal in Gough v Braden. Now, the impact of the opportunity to give an explanation is removed entirely from the statement of the offence. It is described as a “safeguard”, in s 634 of the PPRA. It is not part of the offence itself. [9] When a person is charged with an offence under s 16, an element of the offence is unlawful possession. That means possession without authorisation, justification or excuse by law. See the dictionary in Schedule 2. There is no longer a burden on a suspected person to prove a satisfactory explanation on the balance of probabilities. The consequence is that the burden of proving unlawful possession is upon the prosecution, and the standard of proof will be beyond reasonable doubt. Any explanation will be part of the evidence at the trial. [10] Before bringing a charge under s 16, a police officer must suspect that a person is in the possession of something that has been stolen or unlawfully obtained. However, that does not mean that the trial should focus on the police officer’s reasons for having that suspicion. Rather, in offences of this kind, it is for the court hearing the case to decide if there is a reasonable suspicion. [11] Consistently with the court’s task, there is a need to apply an objective standard to the holding of the reasonable suspicion. It must be a suspicion based on facts which would create a reasonable suspicion in the mind of a reasonable person. The focus is not on the state of mind of the police officer. -- 4 of 15 -- 5 [12] It follows that all the evidence available by the time of the trial should be considered, not just the evidence available to the police officer. It would be an unhelpful and artificial restriction if further evidence could not be led and considered at the trial. [13] These propositions are established by the Australian cases – see Patmoy (above) and Abbrederis (1981) 3 A Crim R 366 (Court of Criminal Appeal, New South Wales). On appeal in Abbrederis, the High Court refused special leave, saying that it was for the court hearing the case to decide if there was a reasonable suspicion – see Abbrederis, unreported, HCA, 8 October 1981. See also R v Wong (1990) 49 A Crim Rep 184 at 204, applying the decision of the South Australia Supreme Court in Manley v Tucs (1985) 40 SASR 1 at 6. Finally, see Gough v Braden (above) at p 104, line 50. [14] The courts insist upon a strict construction of the words in a statute outlining the elements of the offence. They recognise the extraordinary and serious character of the law which authorises the arrest of a person on mere suspicion, to be followed by a conviction and possible imprisonment. See the High Court in Brown v The Queen (1980-81) 147 CLR 503 at 507. [15] In this case, it is apparent that the police prosecutor and the Magistrate did not have a clear understanding about the elements of the offence, and the burden of proof. The Evidence [16] There was no doubt that Mr Castle had possession of the Land Cruiser for a couple of years. He had registered it in his name, (or his company’s name) and had obtained two roadworthy certificates. The case against him was really an allegation that he knew that it was a “reborn” or “rebirthed” vehicle – that is, a vehicle that had been stolen, and from which the identification plates and numbers had been removed, to be -- 5 of 15 -- 6 replaced by different identification so that it appeared to be a vehicle which was lawfully obtained by him. [17] A police scientific officer inspected the vehicle. She found that the chassis number, to be found on the chassis rail, was not genuine. That is to say, a piece of the metal rail had been cut out and a new piece, bearing a number, had been welded in. [18] An engine of a vehicle carries an original number. She found a small metal plate glued over the surface of the original number. The plate carried a different engine number. [19] She also observed the compliance and identification plates screwed to the firewall of the vehicle. She saw that one of them was slightly bent. She explained that the other one had some “drill spin” around one of the rivets. She explained that if a plate is removed from a vehicle with a drill into the rivet, the rivet gets stuck on the end of the drill, spins around, and creates little spin marks on the plate itself. That can indicate that the plate may have been removed from another vehicle at some stage. She conceded that it did not show conclusively that it had been removed from another vehicle. [20] According to the plates, the vehicle was made in April 1998. She observed that the seat belts and some windows had codes for 1997. It is difficult to understand the significance of the evidence, that seatbelts and windows had date codes earlier than the actual build date on the compliance plate. That was not explained, nor was it explored in cross-examination. Presumably, a vehicle is put together at the factory from a variety of parts that come from specialised manufacturers. They would be made some time before the actual vehicle was put together from those parts. The assumption in the police officer’s evidence seems to be that it was unusual to find such things in a vehicle made in April 1998. Perhaps it was tacitly accepted that a vehicle in its -- 6 of 15 -- 7 original condition would not show such differences. Mr Castle’s brother, who said he collected various parts for the vehicle and put them in, was not asked about this matter. He did say that seatbelts were often replaced because of damage caused by dust at the mines. [21] Plainclothes Senior Constable Farmer was the investigating officer. He spoke to Mr Castle. He had been told by the scientific officer about the chassis number and the identification numbers in the engine bay, and the fact that a small plate with an engine number on it had been glued over the original engine number. [22] Mr Castle told the police officer that he had got the vehicle “from the mines” and that he had receipts for it. He handed a file of papers to the police officer. It contained some receipts. They showed that in 1998 a Toyota light vehicle had been sold by Roche Mining to his brother, Alan Castle. There was a reference to the frame number of the vehicle. That frame number matched the number welded into the chassis of Mr Castle’s Land Cruiser. There was no mention of the sale price. The receipts concluded, “the purchase is for the vehicle in a As/Is condition and you are responsible to demobilise the vehicle from site”. [23] Later on, the police officer obtained a copy of the original receipt from Roche Mining. He observed that the original receipt contained more information, compared to the document obtained from Mr Castle. It can be seen that Mr Castle’s copies appear to be photocopies. The original, or at least a photocopy of it, contains further information – that the thing purchased was really a light vehicle chassis, for $500 cash, and that the vehicle was in a “scrapped” condition. The changes that had been made to Mr Roche’s copies of the document aroused the police officer’s suspicions. The suspicions were also based on the fact that one of Mr Castle’s copies of the receipt showed whiteout -- 7 of 15 -- 8 over the words that had been removed. There was no evidence that Mr Castle had used the altered versions for any purpose. [24] The officer also learnt, from another receipt which Mr Castle handed him, that he had bought a second-hand Toyota engine for $500 from a business at Burpengary. The police officer contacted that business. The person there told him that “he had sold Mr Castle a cooked engine that didn't work and it wasn’t one to put in the car … they were friends …”. There was an objection to the hearsay, and there was no further admissible evidence about that. [25] In any event, the receipt for the engine showed an engine number. It matched the number on the plate that had been stuck onto the Land Cruiser’s engine. As it did not show the actual engine number, he regarded that as suspicious. As he said in cross- examination, he believed that Mr Castle had just paid for an engine number, rather than another engine. [26] The police officer had the belief that Mr Castle’s Land Cruiser was worth around $20,000. The information from Mr Castle had indicated to the officer that he had really got it for $1,000 – the cost of the payment to the mines, and the cost of the new engine. He found that suspicious. [27] The police officer was told by someone at the mines that the vehicle had been damaged in a collision with a much larger piece of mining machinery. He also learnt from Mr Castle that his brother, Alan Castle, had obtained the vehicle for him, from the mine. The police officer was unable to speak to his brother. [28] The police officer made it clear that he suspected that Mr Castle had really been supplied only with a genuine chassis number, from the damaged mines vehicle, and that it had been inserted into a stolen vehicle. -- 8 of 15 -- 9 [29] An employee of the mining company, Clive McDonald, was called as a witness. He recalled an incident when a mining operator reversed a 65 tonne machine onto a Toyota ute. He said that the vehicle was in a pretty messy state, and had to be towed away. It was not driveable. He could not say how far it was crushed. (In his address, the prosecutor somewhat overstated the effect of this evidence, about the extent of damage to the vehicle – Transcript p 70 line 55.) [30] Mr Castle gave evidence. He said that he explained to his younger brother that he was looking for a four-wheel drive vehicle. His brother said that he would be able to get him one cheaply from the mines. That was done. His brother said that it was repairable. The vehicle that arrived in Brisbane had no engine and some other parts were missing. He understood that it had been removed and put in another vehicle at the mine. [31] He tracked down the second-hand engine from the business in Burpengary. It was run by a man called Chris Gill. According to Mr Castle, he bought a second-hand engine from him for $500. He produced the receipt, mentioned above. [32] He then took the vehicle to a friend who had a spray-painting shop. He was called Darren Rock. He painted the vehicle for $5,000. Mr Castle explained that the vehicle had been put together out of bits and pieces by his brother and that he could see different shades of white. That is why it needed to be painted. Apart from the engine, he added “a lot of different stuff” which he had to buy and replace. He put extractors on the engine. He had a rack made for the tray. He bought a set of mag wheels. He bought a bull-bar, and other parts. He did not keep receipts for those things, or for the payment of $5,000. He explained that Mr Rock had since been killed in an accident. -- 9 of 15 -- 10 [33] He said that he knew nothing about the change of identification number on the chassis, or elsewhere. He had no suspicions about it. He did not agree that there was something suspicious about the identification and compliance plates. [34] Mr Castle gave his occupation as a builder, who had an interest in vehicles through car and bike drag racing. He said that he had never been convicted of any offence relating to dishonesty. [35] He did not agree with the police officer’s estimate of value, at $20,000. He thought the value of the vehicle was between $12,000 and $15,000, and that “it owes me nearly $10,000”. [36] Mr Castle also explained it was quite likely that his brother had obtained different parts from other Toyota wrecks. As he said, “It could have been made up from 10 different vehicles from all I know”. [37] Mr Castle was cross-examined by the police prosecutor. He was not cross-examined about the alterations to the receipts. It was not suggested that he had changed the identification number or the chassis, or that he had done anything improper. The cross-examination was directed towards his efforts, or lack of efforts, to show that he had a good explanation about how he ended up with such a good vehicle for so little money. The cross-examination showed that the prosecutor thought it was for Mr Castle to prove that he had a good explanation. [38] Alan Castle, Mr Castle’s brother, gave evidence. He had not been interviewed by Senior Constable Farmer. He worked for Pasminco at the Century Mine, where Roche Mining was a contractor. He confirmed the accident at the mine. He confirmed that he had bought the chassis from Roche for $500. He explained that the motor and all the panelling had been taken off the vehicle. He said that about another six Toyotas had -- 10 of 15 -- 11 been damaged in one form or another. He got bits and pieces lying around the place, and from different contractors. He put them together. The motor was taken out to be put in another mine vehicle. [39] He said that damage to the vehicle was not as bad as it first appeared. He was told that the vehicle had a bent chassis. His inspection showed that it was only panel damage. He explained that he examined and measured the chassis, and found it to be straight. He said that when the vehicle was sent to his brother, it was missing its engine and its wheels. [40] He was cross-examined. It was not suggested to him that he had taken the identification numbers or plates from the scrapped vehicle, and put them into a stolen, or at least different, vehicle. The Submissions [41] At the end of the prosecution evidence, there was a submission on behalf of Mr Castle that he did not have a case to answer. That submission was rejected. Further submissions were made in the usual way at the end of the evidence. There seems to have been no attention paid by either side to the need for the prosecution to demonstrate that his possession was unlawful. Rather, attention was still focussed on the sort of case of which Gough v Braden is an example, where it is for the person in possession to give an explanation to the court. [42] It never seems to have been appreciated by the prosecution that there was a burden on the prosecution to prove beyond reasonable doubt that Mr Castle possessed the vehicle unlawfully. Mr McGhie, who appeared for Mr Castle, did point out in his submissions that the current provision was different. As he put it: -- 11 of 15 -- 12 “I submit that it can’t be assumed, as I say, that those old cases necessarily refer to this – to this new section such that my client does now have a positive onus to prove anything. I can’t assist your Honour any further. I’m not submitting that there’s – that there’s a decision one way or the other because to my knowledge there isn’t, but it is a different wording and those old cases, as I say, are not necessarily applicable, because they’re a different section, a different Act. …” (Transcript 73, line 55- to page 74 line 6) The Decision [43] In this court, it was submitted that the Magistrate had not considered the requirements of s 634 of PPRA. She did not mention them. However, the evidence clearly shows that Senior Constable Farmer gave Mr Castle more than one opportunity to explain how he came to have possession of the vehicle. The police officer did consider that it was not a reasonable explanation. The Magistrate was right to proceed straight to a consideration of the actual charge. [44] The Magistrate found that several facts were important: (a) All points of identification of the vehicle had been tampered with or interfered with or rearranged in some way - the number welded to the chassis, the engine number obscured by another plate with a different number, and that the compliance plate had been removed and replaced on the vehicle; (b) A “severely damaged” motor vehicle was purchased by Mr Castle’s brother from Roche Mining. It was “very, very seriously damaged”; (c) Mr Castle produced a receipt to police. That receipt had been severely tampered with or interfered with, in that parts of it had been whitened out, obliterated with different words inserted. There were different copies and there were blank copies as well; (d) Even the seatbelts and the windows had dates pre-dating the age of the vehicle; -- 12 of 15 -- 13 (e) Mr Alan Castle (the brother) said that he created the car from bits and pieces. [45] All of those matters “created difficulties” for Mr Castle – “it is just hard to accept that all that does not add up to something which is probably not exactly the way that Mr Castle said that it was”. [46] Being satisfied of all the elements of the offence to the criminal standard, the Magistrate “would convict the defendant of the charge that he should have reasonably suspected that the vehicle was unlawfully obtained”. [47] Several observations can be made about those reasons. The police evidence about the points of identification of the vehicle was not doubted, and it was accepted. That was an unsurprising finding. The Magistrate was quite justified in finding that there was a reasonable suspicion that the vehicle had been stolen or unlawfully obtained. [48] There is then a discussion of the altered receipts. There is no mention of the genuine receipt, given by the mining company to Mr Castle’s brother. It is true that Mr Castle was in possession of versions of that receipt which had been altered. If he were thinking of selling the vehicle, then the production of those altered receipts would have been misleading. His alterations may have led to suspicions, that he was prepared to misrepresent the condition and cost of the vehicle when it was sold by Roche mining. No actual explanation was given, probably because he later declined to be interviewed by police. However, the alterations had no bearing on the question as to whether or not he was in unlawful possession of the vehicle. Only the original receipt was significant. [49] Mr Castle’s brother is briefly mentioned, but there is no recognition or discussion of his evidence about rebuilding the vehicle before sending it to Mr Castle. There is no finding as to whether his brother’s evidence was accepted, or not. (It was not put to him in cross-examination, that his evidence was inaccurate). -- 13 of 15 -- 14 [50] It is difficult to understand the magistrate’s findings about what it was that Mr Castle had done, or knew. The finding was that the evidence about the problems with identification “created difficulties for Mr Castle” and that (in effect), all those facts added up to something, “which was not exactly the way that Mr Castle said that it was”. That expression is so elliptical, that it is hard to know if any finding of fact is actually made, compared to what Mr Castle had said about the vehicle. [51] Mr Castle was not charged on the basis that he did suspect, or should have reasonably suspected, that the vehicle was unlawfully obtained. Rather, he was charged with possessing such a vehicle, without authorisation, justification or excuse. The question was, had it been proved beyond reasonable doubt that his possession was unlawful? The Magistrate’s conclusion was that he should have reasonably suspected that it was unlawfully obtained. Even as a matter of fact, that would not support the conviction. [52] The Magistrate’s finding was not an answer to the actual charge. Unfortunately, innocent people often buy property that turns out to be stolen. Motor vehicles can be in that category. An innocent purchaser of a stolen vehicle commits no offence. The criminal law protects such a person if an honest claim of right to the vehicle is made - see s 22 of the Criminal Code. That is a claim which does not have to be reasonable, so long as it is honest – see Clarkson v Aspinall; Ex Parte Aspinall [1950] St R Qd 79. [53] The Magistrate’s conclusion does not amount to a finding that he was in unlawful possession of the vehicle. The judgment does not contain a finding of fact which could support the conviction. Conclusions [54] The conviction must be set aside. The orders that might be made by this court include sending the matter back to the same magistrate for rehearing or reconsideration, or to -- 14 of 15 -- 15 another magistrate. There could be an order that the complaint be dismissed, so that the matter would be at an end. [55] It should be noted that the vehicle that was sold to Mr Alan Castle was four years old. No evidence was given about its history during those years (Transcript p 35 line 35). Overall, it is unlikely that the prosecution could demonstrate beyond reasonable doubt that Mr Castle was in unlawful possession of the vehicle. [56] The appeal is allowed, and the complaint is dismissed. -- 15 of 15 --