Crawford v Pattemore [1999] QDC 232

IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND [Before SKOIEN SJDC] [Crawford v. Pattemore] Appeal No 1222 of 1999 BETWEEN: ALLAN JAMES CRAWFORD Appellant AND: TONY BOYD PATTEMORE Respondent JUDGMENT Judgment delivered: 18 August 1999 Catchwords: Crimes (Confiscation) Act 1989 ss. 3, 23, 92, Vagrants Gaming and Other Offences Act 1931 s.25; Conviction upheld, law correctly applied, evidence properly received, sentence manifestly excessive, no power to order forfeiture. Counsel: Mr. Butler for the appellant Mr. Byrnes for the respondent Solicitors: Terry Fisher for the appellant State Crown Solicitor for the respondent -- 1 of 14 -- Hearing Date: 10 August 1999 -- 2 of 14 -- IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND Appeal No. 1222 of 1999 BETWEEN: ALLAN JAMES CRAWFORD Appellant AND: TONY BOYD PATTEMORE Respondent REASONS FOR JUDGMENT - SKOIEN S.J.D.C. Delivered the Eighteenth day of August 1999 1. The appellant was convicted on 19 February 1999 by Mr. Taylor, stipendiary magistrate, in the Brisbane Magistrates Court of one count breaching section 92(1) of the Crimes (Confiscation) Act 1989. He was fined $300 and in default of payment sentenced to serve 9 days imprisonment. He was granted a fine option order allowing him to perform 40 hours community service in lieu of payment of the fine. The learned stipendiary magistrate in addition ordered the wallet the subject of the charge to be forfeited to the Crown. 2. The appellant has appealed under s.222 of the Justices Act 1886 against the conviction, the sentence and the forfeiture order. The Legislation 3. Section 92 is 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. -- 3 of 14 -- (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.” 4. Section 13(1) of the Act defines “tainted property” as follows:- “13.(1) “Tainted property”, in relation to a serious offence, means property - (a) used, or intended to be used, by a person in, or in connection with, the commission of the serious offence; or (b) derived by a person from property mentioned in paragraph (a); or (c) derived by a person from the commission of the serious offence.” 5. Section 4 defines serious offence as - “‘serious offence’ means - (a) a serious drug offence; (b) another indictable offence, whether dealt with on indictment or summarily; or (c) an offence against this Act for which an offender is liable to imprisonment; or (d) an offence against an Act or a provision specified in schedule 2; or (e) another offence prescribed by regulation.” 6. The property which was the subject of the charge was a nylon and velcro wallet. The first thing the prosecution must prove is that the appellant was in possession of the wallet and that must be proved beyond reasonable doubt. See King v. De Villiers, unreported, CA 5904 of 1997, delivered 25 November 1997. No point was taken on the appeal in relation to that aspect of the matter. 7. The first ground of appeal related to the second element of s.92(1), “property that may -- 4 of 14 -- 3 reasonably be suspected of being tainted property.” In King v. De Villiers Pincus JA said this:- “The subsection does not in terms indicate who is the person who has to hold the suspicion. But the provision has been construed by this Court, following previous authority, as requiring the court to determine objectively whether it is satisfied beyond reasonable doubt that the property might reasonably be suspected of being tainted property: McGee v. McKeever (1994) 71 A.Crim.R. 586 at 593. This involves reading the section, which makes no reference to suspicion held by the police or indeed any other person, quite literally. The description “that may reasonably be suspected of being tainted property” is one which the court has to be satisfied, beyond reasonable doubt, attaches objectively to the goods.” and Thomas J.A. said (referring to two extracts from the judgment in the Magistrates Court):- “It is enough to say that the first of these statements, which is concerned with reasonableness of the police suspicion, is inconsistent with the objective test required by the authorities (Anderson v. Judges of District Court NSW (1992) 27 NSWLR 701, 614 per Kirby J; R. v. Chan (1992) 28 NSWLR 421, 435; McGee v. McKeever (1994) 71 A.Crim.R.586 at 592). In particular the question whether the property was ‘property that may reasonably be suspected of being tainted property’ must be determined not according to the subjective beliefs of the police at the time, but according to an objective criterion determined by the court at the time of the decision. Also, that element must be satisfied beyond reasonable doubt. The second statement (above) is also erroneous in suggesting that the finding of a case to answer under s.91(1) is sufficient to ground a conviction if a defendant fails to negative the reasonableness of the magistrate’s suspicion.” 8. I take the reference by Thomas J.A. to the falsity of the second statement as simply emphasising that the statement confused two distinct and separate things. The first is the reasonable suspicion required by s.92(1) that the property is tainted and of that the court must be objectively satisfied beyond reasonable doubt before there can be a conviction. The second is the statutory defence under s.92(2) whereby the defendant may satisfy the magistrate that he (that is, the defendant) had no reasonable grounds for suspecting that the property was either “tainted or derived from any form of unlawful activity”. That defence depends on the subjective -- 5 of 14 -- 4 state of the mind of the defendant. 9. No doubt it is sufficient if a defendant proves that defence on the balance of probability. It may not be an easy defence to establish even to that standard because it requires the defendant to prove that he had no reasonable grounds for suspecting that the property fell within any of the three categories in s.13(1) which I have quoted in paragraph 4 of these reasons or was derived from any “act or omission that is an offence against a law of the Commonwealth or a State or Territory” (see the definition of “unlawful activity” in s.4 of the Act. It seems to me that this provision will create difficulties when it falls to be interpreted. Does it simply require proof of the absence of reasonable grounds for suspecting the existence of the material act or omission or does it require a defendant also to prove that he did not have reasonable grounds for suspecting that the material act or omission was an offence against a law of the Commonwealth, or a State or Territory. It might also be noted that while s.92(1) requires the prosecution to prove reasonable suspicion that the property is tainted, the defence under s.92(2) is required to prove absence of suspicion that it is tainted and also that it was not derived from a breach of Commonwealth, State or Territory law. In other words the defence is required to prove a much wider proposition than the prosecution has to. These potential difficulties were not argued on this appeal. The Evidence 10. The facts fall within a short compass. Police officers, speaking to the appellant about unpaid fines, found him to be in possession of the wallet. It is a nylon wallet which is secured by velcro strips. It has a number of compartments. While the velcro strips are rather worn and while it is discoloured the magistrate considered it serviceable. The appellant in fact was using it. The -- 6 of 14 -- 5 name “RENEE KELLY” is printed on it in ballpoint ink. 11. The appellant told the police that he found it in a gutter with a broken watch. He said it was empty, in poor condition, faded, dirty and with some of the stitching broken. He said he washed it and had a friend repair the stitching with a sewing machine. He thought it was abandoned so he did not hand it in to the police. After his own wallet wore out, he began to use it. He conceded that the wallet was probably owned by a Renee Kelly. 12. The police officer’s evidence simply recited the bare facts of finding the wallet in the appellant’s possession. Cross examination revealed that police enquiries, using their computer, did not locate anyone named Renee Kelly claiming to have lost or been deprived of the wallet. A Renee May Kelly had complained to police of the theft of a handbag and contents but when approached she disclaimed the wallet. 13. The appellant gave evidence, which, while similar to what he initially told the police, varied from it in some respects. His Worship rejected the appellant’s evidence and no attempt was made to argue that he should not have done so. Appeal against Conviction 14. Counsel for the appellant referred to a number of passages in the learned stipendiary magistrate’s reasons for his decision. The most relevant are: “The prosecution bears the onus of proof, it bears the primary onus of proof beyond reasonable doubt. The provisions of section 92 are such that there may well be a reversal of the onus upon the defendant, if the prosecution is able to discharge its primary onus but whereas the prosecution bears the onus of proof beyond reasonable doubt. If the onus does shift to the defendant, his onus can be discharged merely by proof on the balance of probabilities.” and “However, as I have said, I am not persuaded that that is how the wallet did come into -- 7 of 14 -- 6 the defendant’s possession. If it did not, there is before the Court, the wallet itself which is the best evidence and as I have said, evidence of an item which appears to be of at least some value and an item which is marked with the name ‘Renee Kelly’, a name not that of the defendant. To be found in anybody else’s possession, such as in the defendant’s calls for an explanation. As I have said, if the defendant’s account to the police is at all correct, well then it is one explanation. I doubt that it is correct. If it is not correct, then the defendant’s very conduct in offering a false explanation for having in his possession property which ostensibly the property of somebody else, is in itself conduct which gives rise for a reasonable suspicion that the property is tainted property. And that is, that the property is likely to be known by the defendant to have been tainted property, as it is described under the Act.” and “I am satisfied beyond reasonable doubt that for the reasons given the property on the evidence before this Court today is reasonably to be suspected of being tainted property. The onus then shifts to the defendant. I need say very little about that onus. The comments I have already made as to the defendant’s evidence is quite sufficient to demonstrate that the defendant has not discharged the onus cast upon him by subsection 2, an onus to satisfy the Court that the defendant had reasonable grounds for suspecting that the property was - sorry, that he had no reasonable grounds for suspecting that the property was either tainted property or derived from any form of unlawful activity. By any standard he has not discharged that onus whatsoever.” and “So the position is I am satisfied beyond reasonable doubt that the evidence before the Court is, at the very best, the defendant came by the property under circumstances which constitute finding by stealing. But whether or not that is the case the defendant by his conduct has established a reasonable suspicion that the property is tainted property. I am satisfied beyond reasonable doubt that that is the case and that being the case the prosecution has discharged its onus.” 15. His Worship referred to King v. De Villiers and correctly stated that he was required to find the necessary reasonable suspicion proved beyond reasonable doubt on the evidence presented to him as an objective fact. I must say that I share the philosophical difficulty expressed by Pincus JA in King v. De Villiers when he said: -- 8 of 14 -- 7 “But the idea of proving facts beyond reasonable doubt does not mesh easily with the mention of suspicion and in that sense the concept is rather a difficult one.” 16. Still, that is what section 92 talks of, property that may reasonably be suspected of being tainted. The section requires that suspicion, not proof, that the property is tainted be established. The focus is on suspicion, Chan (1992) 63 A.Crim.R. 242 at 253, per Abadee J. It must be established beyond reasonable doubt (King v. De Villiers) and the section expressly requires that the suspicion be reasonable, that is reasonably based and not fancifully based. “Suspicion”, of course is something far short of proof, even proof merely on the balance of probabilities. It can be simply something which points towards the existence of a fact something tending to establish the fact. According to the Shorter Oxford English Dictionary it means: “1. The action of suspecting; the feeling or state of mind of one who suspects; imagination or conjecture of the existence of something evil or wrong without proof; apprehension of guilt or fault on slight grounds or without clear evidence. b. An instance of this. late ME. c. transf. A ground of suspicion; a suspicious circumstance - 1687. 2. gen. Imagination of something (not necessarily evil) as possible or likely; a slight belief or idea of something, or that something is the case; a surmise; a faint notion, an inkling.” so it is apparent that very little must be established in order to satisfy a court beyond a reasonable doubt and provided the suspicion is reasonably based the requirements of the section are fulfilled. 17. In McGee v. McKeever (1994) 71 A.Crim.R. 586 the Queensland Court of Appeal discussed a materially identical provision to s.92. The court held that it is sufficient if the property may reasonably be suspected of being derived or realised from a serious offence and that there is no requirement for the prosecution to specify, much less prove, a particular serious offence. It also held, as did King v. De Villiers that the section required proof of the reasonable -- 9 of 14 -- 8 suspicion to the satisfaction of the court, beyond reasonable doubt. 18. The court in McGee v. McKeever discussed the evidence on which the magistrate had held himself to be satisfied to a requisite degree and decided that the magistrate was entitled to be so satisfied. The evidence included not just the objectively suspicious possession of the property but also the defendant’s failure before the trial to offer a satisfactory innocent explanation for its possession nor produce documentary substantiation and finally his unsatisfactory evidence before the court which the magistrate rejected. 19. In this case the learned stipendiary magistrate had before him the following evidence: possession of a wallet bearing a name that was not that of the appellant, the fact that the wallet was serviceable, the fact that close inspection of it showed no obvious sign of its having been repaired (on which point he obviously rejected the appellant’s evidence), the lack of any credible explanation proffered either to the police or to the court. He expressed himself to be satisfied beyond reasonable doubt on those objective facts that the property was tainted, thus correctly applying the law. I am unable to find him to be in error. 20. His Worship then turned to the defence under s.92(2). The most disturbing aspect of the learned stipendiary magistrate’s reasons for decision on this point is the presence of such observations on the appellant’s explanation as: “his account may be right, but I am in no doubt that if either of his accounts is right it is the candid account he gave to the police rather than the account he gave in court here today.” and (referring to the explanation to the police) “I doubt it is correct”. and (in passing sentence and referring to the appellant’s explanations - “I have not accepted that to be the case. I have accepted it only as a possibility. I am not persuaded that the account is correct.” -- 10 of 14 -- 9 The presence of these passages gives rise to the concern that His Worship did not properly apply his mind to the statutory defence and decide on the balance of probabilities whether it had been made out. 21. In the upshot I have overcome that concern. A reading of His Worship’s reasons in full demonstrate that he utterly rejected the appellant as a witness and there are demonstrable grounds to justify his doing so. In the quoted passages I consider that he is simply saying that the appellant’s explanation to the police, which was a less forthright claim of innocent possession than his evidence, is probably preferable. He described that explanation as a possibility, but implicitly he is saying that it did not amount to a probability so as to make out a good statutory defence. 22. The other ground of appeal against conviction was that the learned stipendiary magistrate improperly received evidence which was prejudicial and not probative. It can be summarised as evidence by the police officer which hinted that the defendant was under investigation for other matters and further hinted that the owner of the wallet, Renee Kelly, simply had not been located at the time of the trial. 23. It is true that the police officer’s evidence was rather loaded with innuendo and that is regrettable. However when objection was taken to this His Worship considered the matter and rejected the objection. I see no reason to suspect that the learned stipendiary magistrate lacked sufficient robustness of mind properly to consider the evidence unswayed by the unseemly hints at darker things. 24. The appeal against conviction must be dismissed. Appeal against Sentence -- 11 of 14 -- 10 25. The appeal is that the sentence was manifestly excessive in the circumstances. It is also said that the learned stipendiary magistrate had no power to order that the wallet be forfeited. 26. The appellant is aged 43. He had a criminal history dating from 1974 to 1997 which was almost all related to illegal drugs. He had a few nuisance street offences but, importantly no convictions for dishonesty. His Worship was told that the appellant had, since 1990, not been taking illegal drugs. He had not offended during the period of 2 years before his appearance on this charge. 27. It is important to bear in mind that no substantive criminal offence had been proved. The maximum penalty under s.92 is 100 penalty units or 2 years imprisonment and one may compare s.398 of the Criminal Code under which the maximum penalty for stealing simpliciter is 5 years imprisonment. 28. It is instructive to refer to the terms of s.3 of the Act which is:- “Object of Act 3.(1) The main object of this Act is to deter the commission of serious offences by removing the financial gain, and increasing the financial loss, associated with their commission. (2) This object is mainly to be achieved by providing for - (a) forfeiture of property - (i) used, or intended to be used, in or in connection with the commission of serious offences; or (ii) derived from property mentioned in subparagraph (i) or from the commission of serious offences; and (b) deprivation of benefits derived from the commission of serious offences; and -- 12 of 14 -- 11 (c) tracing of the property and benefits and prevention of their dissipation or concealment; and (d) enforcement in the State of forfeiture and restraining orders made under corresponding laws. (3) It is also an important object of this Act - (a) to ensure that property rights may be affected by forfeiture or other orders only through just procedures; and (b) to protect from forfeiture or other orders property rights honestly acquired by persons innocent of unlawful activity.” Section 23 provides for forfeiture of property only if the defendant is convicted of a serious offence and the particular property is tainted properly in relation to that serious offence. The appellant was not convicted of any serious offence. 29. So there is power to obtain forfeiture of property where that property is tainted by its connection with a serious offence. That power is frequently exercised to forfeit large sums of money or property obtained from the drug trade. The offence and penalty provided by s.92 is a by-blow to that main purpose. I cannot imagine that the framers of the legislation thought that the Act should be used for the purpose to which it was put on this occasion, to convict a person of an offence under s.92 for the suspicious possession of an old wallet of such value and in such a state of advanced age that, at a charity jumble sale, it would be difficult to imagine it being sold for even a dollar. One would hope that the valuable resources of the prosecutions -- 13 of 14 -- 12 section of the Police Service and a day in the busy schedule of the Magistrates Court (let alone the cost of the defence) would not often be strained by a prosecution such as this occurring. 30. Section 25 of the Vagrants Gaming and Other Offences Act 1931 is the provision which is most apt to be used in cases such as this (although I would still be surprised if it were used for possession of property of this value). The maximum penalty provided for there is a fine of $50 or imprisonment for six months. Of course those maximum penalties would be reserved for the more serious examples of offending. 31. A fine of $300 (in default 9 days imprisonment) is quite excessive. In all the circumstances, especially as the appellant has never had a conviction for an offence of dishonesty and as he has committed no offence at all since February 1997, I consider that the offence should be taken as proved but that the appellant should be discharged without recording a conviction or imposing any penalty. 32. It is conceded that the learned stipendiary magistrate had no power to order forfeiture of the wallet. As can be seen (para 28 supra) this case does not fall within s.23. So the forfeiture order must be set aside. Conclusion 33. The appeal against conviction is dismissed. The appeal against sentence is allowed. The sentence imposed by Mr. Taylor, stipendiary magistrate, on 5 March 1999 and the forfeiture order are set aside. I substitute, as the proper sentence, an order that the appellant be discharged without recording a conviction and without the imposition of any penalty. -- 14 of 14 --