Bratton v Amiguet [2002] QDC 74

State Reporting Bureau Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. [2002] QDC 074 DISTRICT COURT APPELLATE JURISDICTION JUDGE C F WALL QC No D22 of 2002 JAMES EDWARD BRATTON Appellant and PETER THOMAS AMIGUET Respondent TOWNSVILLE ..DATE 21/03/2002 JUDGMENT 1 REVISED COPIES ISSUED State Reporting Bureau Date: 25 / 3 / 02 -- 1 of 12 -- 21032002 T6-7/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 2 HIS HONOUR: This is an appeal against the appellant's conviction in the Magistrates Court at Townsville on the 7th of November 2001 of an offence against section 92(1) of the Crimes (Confiscation) Act 1989. The complaint alleged that on the 1st of August 2001 the appellant possessed property namely an IBM Think Pad laptop computer that may reasonably be suspected of being tainted property. The evidence before the Magistrate established that on the 1st of August 2001 at about 12.40 a.m., police saw the appellant alight from a vehicle in Clayton Street, Townsville, next to a unit occupied by Melissa Thompson, the daughter of Kerry Thompson. He was then carrying the laptop. He appeared to dispose of it or drop it. He was apprehended and was charged with the present offence. Section 92(1) and (2) provide as follows: "92.(1) A person must not receive, possess, dispose of, bring into Queensland, conceal or disguise property that may reasonably be suspected of being tainted property. Maximum penalty - 100 penalty units or 2 years imprisonment (2) If a person is charged with an offence against this section, it is a defence to the charge if the person satisfies the Court that the person had no reasonable grounds for suspecting that the property mentioned in the charge was either tainted property or derived from any form of unlawful activity." "Tainted property" includes stolen property. See section 13(1). -- 2 of 12 -- 21032002 T6-7/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 3 The appellant gave evidence and called his girlfriend, Kristy Bennett. At the relevant time they lived together. She said that on the 31st of July 2001 at 5 to 6 p.m., Matt Bentley and Kerry Thompson left the laptop with her, the appellant not then being home, asking that the appellant see if he could get it to work. The appellant was apparently computer literate. The appellant came home later that night towards midnight and at the request of Ms Bennett, tried unsuccessfully to get the computer to work. He could not get access to it and thought this was because it was "a company computer". He became suspicious of its origin; it "didn't look right", he "thought it was possible it was stolen". He decided to return it to Bentley and Thompson and that is what he said he was doing when apprehended by the police. He said he intended to leave the laptop with Melissa for her to give back to her mother. Kristy Bennett said that the appellant decided to take the laptop back because he said it was hot or stolen, that the story Bentley and Thompson gave did not match the computer because the computer was a business computer and did not belong to them. He told her he was taking it back because it did not match up with "the story", it was suspicious. She suggested he take it to the police but he said, "What's the point when it might not be. It might be a friend of theirs who owns a business." She said he was not sure if it was stolen. The prosecution asked the Magistrate to disbelieve the appellant and Ms Bennett. -- 3 of 12 -- 21032002 T6-7/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 4 At the trial the defence did not take issue with the fact that the laptop was tainted property. The evidence clearly established that it had been stolen from the house of an accountant, between 3 and 4.30 p.m. on the 29th of July 2001. The laptop belonged to the accountant's employer, Price Waterhouse Coopers. The defence case was that the appellant, having decided to return the laptop to Bentley and Thompson and being in the process of doing so, was not legally in possession of it. Reliance was placed on McCalla v R (1988) 87 Cr App R 372 at 379. It was submitted that the appellant "displayed an immediate intention not to have possession (of the laptop) and to rid himself of (it). He has acted to return it to those from whom it came having developed a suspicion that it could be stolen property." Before me, Mr Brown, who also appeared for the appellant in the Magistrates Court, submitted that he did not rely in the Magistrates Court upon the defence in section 92(2). The transcript at page 96 indicates that in fact he may have, but I concede there is room for doubt. Reliance on the defence would not necessarily be inconsistent with the effective admission that the property was tainted but in view of the evidence of the appellant and Ms Bennett of what the appellant said to her, it was a defence which was destined to fail, as -- 4 of 12 -- 21032002 T6-7/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 5 it did. The respondent however, concedes that section 92(2) was not in fact relied on at the trial. In his decision the Magistrate considered only two issues, first whether the laptop "may reasonably be suspected of being tainted property" and second, the section 92(2) defence. He did not consider the "possession" defence. Not surprisingly, he resolved the two issues which he considered, against the appellant. The first was in fact not an issue on the trial and the respondent concedes also, that the second was also not an issue. The issue in relation to possession remains unresolved and the failure of the Magistrate to consider it forms the sole basis of the appeal. The respondent concedes (quite correctly) that the Magistrate was in error in not considering and deciding that issue, but submits that on the evidence before the Magistrate, there is sufficient evidence to warrant a finding by this Court, that the appellant was relevantly in possession of the laptop. Questions of credibility are involved. I have not seen or heard the witnesses and in these circumstances, realistically, I am unable to properly resolve the issue one way or the other. It all depends on whether the appellant and Ms Bennett are believed or whether their evidence, considered in the light of all of the evidence, leaves one with a reasonable doubt as to what the position was and that cannot be determined on the papers. -- 5 of 12 -- 21032002 T6-7/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 6 The fact that the Magistrate had doubts as to the appellant's credibility on the section 92(2) defence, is not to the point. That is a different issue from whether, had he considered it, he would have been satisfied beyond reasonable doubt that the prosecution had proved the necessary mental element, conceded by the respondent to exist, involved in possession. Section 92(2) places the onus on the defendant (on the balance of probabilities) to establish the defence. Possession on the other hand is an element of the offence to be proved beyond reasonable doubt. I am unable to conclude that had the Magistrate considered this element he would inevitably have convicted. The trial miscarried because this element was not considered by the Magistrate. In Police v Kennedy (unreported) SASC, 28 April 1998 [1998] SASC 6638, Bleby J said, correctly with respect, "The elements necessary to establish a charge of possession will vary greatly according to the legislative context in which the offence appears and the object of the legislation in question." At common law there are two elements for possession - (1) physical custody or control by the defendant; and (2) an intention to possess or mens rea. There are a couple of faint suggestions against the appellant's argument in this case but these are, in my view, -- 6 of 12 -- 21032002 T6-7/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 7 outweighed by other authorities and by principle and logic. In Crawford v Pattemore (unreported) DC, Qld, 18.8.99 [1999] QDC 232 Skoien SJDC said of the present offence (paragraph 16): "...it is apparent that very little must be established in order to satisfy a Court beyond reasonable doubt and provided the suspicion is reasonably based the requirements of the section are fulfilled." His Honour was not dealing with the present point and must be taken to have been speaking of a situation where possession was not in dispute. Likewise the remarks of Kirby P in Anderson v NSW DC Judges [1992] 27 NSWLR 70 about s 527C Crimes Act (NSW) that: "Attention must be drawn to the qualified mental element which must be established in order to attract the operation of the section. It is enough that it is shown that the thing in custody 'may be reasonably suspected of being...unlawfully obtained.'" In my view, section 92(1) requires a coexistence of possession and suspicion. Section 92(1) and (2) were considered by the Court of Appeal in King v De Villiers (unreported) 25.11.97, Appeal No 5904 of 1997. Pincus JA said there, under the heading "Was the law correctly applied?" "...the prosecution had to show that the appellant possessed the property in question; that had to be proved beyond reasonable doubt. In the present case it is not absolutely clear that the learned Magistrate who decided the case kept that firmly in mind... The prosecution had to prove, in order to obtain a conviction, that the appellant possessed the property in question and also -- 7 of 12 -- 21032002 T6-7/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 8 that such property may reasonably be suspected of being tainted property." In R v Brauer,(1990) 1 Qd.R. 332 Cooper J said at page 360, "the offence of being in possession is complete when the mental element is proved." In Police v Kennedy, supra, Bleby J also distinguished between "the physical element of possession or control" and "the necessary state of mind of the defendant." In the present case the police prosecutor appeared to accept that in certain circumstances a person in physical possession of property who became aware it was stolen may have a defence (other than section 92(2)) when he submitted to the Magistrate: "The right thing would have been to take it to the police at the time he thought it was stolen." In McCalla v R, supra, May LJ in delivering the judgment of the Court of Appeal said at page 379: "...once one has or possesses something...one continues to have or possess it until one does something to rid oneself of having possession of it..." That was the argument advanced to the Magistrate here. Unfortunately, his Worship did not deal with it. -- 8 of 12 -- 21032002 T6-7/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 9 That there must be a mental element involved in possession in a case such as the present is, I think, clear from the following example. AB observes CD steal a watch from EF and gives chase. He retrieves the watch and is physically in possession of it, intending to return it to EF. By no stretch of the imagination could he be said to be guilty of an offence against section 92(1). The fact situation in this appeal is merely a variant of that example. I am not to be taken as suggesting that the appellant would have succeeded in his defence, only that it was incumbent upon the Magistrate to consider it in analysing whether the prosecution had proved possession in the relevant sense. In this context, the decision of the English Court of Criminal Appeal in R v Matthews (1949) 34 Cr.App.R. 55 is of some assistance by analogy. The facts, taken from the headnote, were: "The appellant, who was charged with receiving stolen property, admitted that when he received the property he knew it to be stolen, but said that he had received it with the intention of handing it over to the police. He did communicate with the police by telephone, but at the appointment which he had made he did not hand the property over to the police, and it was not found till the next day and was then hidden behind the seat of the police car in which the appellant had travelled." The Court of Criminal Appeal said at pages 58-59: -- 9 of 12 -- 21032002 T6-7/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 10 "If the appellant received the property in the circumstances which he desired the jury to find, with intention of at once handing it over to the police, though the learned Chairman might well have asked the jury whether in all the circumstances the appellant could possibly have had that intention, then that would not be a felonious receipt. The court cannot possibly accept the argument which has been addressed to it on behalf of the prosecution that a person who has received stolen property intending at once to hand it over to the police or the true owner, is nevertheless guilty of that felony of receiving stolen property. That would mean that if somebody chased a thief and picked up stolen property, which had been dropped by the thief, he would be guilty of the offence of receiving stolen property. That is so startling that I am surprised the argument can be put; at any rate, it is not the law. "In this case, if the jury had believed the appellant's evidence that he had innocently taken the property in the sense that he intended to return it to the true owner or the police, there would be no trespass, and therefore he could not be guilty of the offence of stealing." In a similar vein, the English Court of Criminal Appeal in the R v Dellicompagni (unreported) 15 December 1997, in relation to a charge of handling stolen goods posed as relevant questions in this context, the following, "Was the possession dishonest?" and "Was the accused acting dishonestly?". The evidence of the appellant here that he intended to return the laptop to Bentley and Thompson, rather than take it to the police, had to be considered in the context of the elements of the offence and it was not. The Magistrate may very well have rejected the evidence, but I cannot conclude that he must have reached that result. It may be that the Magistrate would have disbelieved the appellant's assertion that he did not in fact know or suspect that Bentley and Thompson had most probably -- 10 of 12 -- 21032002 T6-7/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 11 stolen the laptop and been satisfied that the necessary mental element for possession, bearing in mind the object of the legislation, had been proved. I cannot though, reach that conclusion simply on a reading of the evidence. The respondent concedes that the Magistrate erred in not considering these matters in the context of the element of the offence requiring proof of possession. The appeal will accordingly be allowed with costs. The conviction and sentence will be set aside and the complaint will be dismissed. The respondent concedes that this should be the result once it is concluded that it is not open to this Court to resolve the issue of possession. There is unfortunately, no power to order a retrial. The absence of such a power in section 225 of the Justices Act should again be brought to the attention of the legislature. ... HIS HONOUR: The parties have agreed that the appellant's costs in the Magistrates Court are $616. In those circumstances, I order that the respondent pay the appellant's costs of the hearing in the Magistrates Court fixed at $616. ... HIS HONOUR: I order that the respondent pay the appellant's costs of the appeal, agreed at $966.90. -- 11 of 12 -- 21032002 T6-7/MM M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 12 ... HIS HONOUR: The respondent is entitled to an indemnity certificate under section 15 subsection (3) of the Appeal Costs Fund Act. In those circumstances, under that section, I grant to the respondent, an indemnity certificate in respect of the appeal. ----- -- 12 of 12 --