Court of Appeal (WA)|2003-06-27|Before: Wickham J, Pullin J

Mclennan v Campbell [2003] WASCA 145 (27 June 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MCLENNAN -v- CAMPBELL [2003] WASCA 145

MATTER : The Justices Act 1902

Criminal law - Property reasonably suspected of being stolen - Suspected - Whether complainant must hold the suspicion

English v The Queen (1989) 17 NSWLR 149

1 PULLIN J: On 3 February 2003, his Worship Mr Heaney SM dismissed a charge that the respondent had in her possession five pieces of whale tooth scrimshaw reasonably suspected of being stolen or unlawfully obtained, contrary to s 69 of the Police Act 1892.

3 Section 69 of the Police Act 1892 reads:

"69. Possession of property reasonably suspected to be unlawfully obtained

Every person who shall be brought before any Justice charged with having on his person or in any place, or conveying, in any manner any thing which may be reasonably suspected of being stolen or unlawfully obtained, and who shall not give an account to the satisfaction of such Justice how he came by the same, shall be liable to a penalty of not more than $2 000, or in the discretion of the Justice may be imprisoned for any term not exceeding 2 years."

4 The evidence led by the prosecution was from two witnesses. The first was a Mr Trevor Cross. He gave evidence that the five pieces of scrimshaw were stolen from his car in 1998 when it was parked in East Victoria Park. He also gave evidence that in November 2001 he was in Albany and the respondent offered to sell the scrimshaw to him. There was no dispute that the scrimshaw offered was the scrimshaw stolen from Mr Cross. The other witness was Constable Quail-Smith. She was present when the respondent showed the scrimshaw to Mr Cross.

5 The respondent was later charged with this offence.

6 During cross-examination of Constable Quail-Smith, it was put to her that she "knew" that the scrimshaw had been stolen from Mr Cross. The constable agreed with that proposition.

7 His Worship then heard submissions from counsel for the respondent that the prosecution had "knowledge" of the scrimshaw being stolen rather than a "suspicion". Counsel referred to O'Brien v Reitze [1972] WAR 152. In that case Wickham J said, in the course of reasons for decision concerning a charge under s 69, that:

"The true distinction is between suspicion or belief on the one hand, either of which would support a conviction under the section, and knowledge on the other. If it were shown that the complainant knew (or thought that he knew) that the goods were stolen and were stolen by the accused, a conviction under the section could not be supported."

8 The Magistrate gave abbreviated reasons for decision which appeared to be to the effect that because the police knew that the scrimshaw was stolen, they did not have a suspicion the scrimshaw had been stolen. He held that the police knew it was stolen because Mr Cross proved it to them. For that reason, the Magistrate dismissed the charge. The appellant, in ground 1, complains that:

"The learned Magistrate erred in fact and in law in finding that Constable Quail-Smith knew that the items of property had been stolen or unlawfully obtained."

9 The case raises two questions. First, whether "knowledge" that the scrimshaw had been stolen rather than a "suspicion" it had been stolen, means that the charge has not been proved. Secondly, who is it who must hold the suspicion.

10 It seems that over a period of more than 70 years, some Judges have been troubled by the subtle distinctions between the meaning of the word or words "know" or "knowledge" or "belief" on the one hand, and "suspect" or "suspicion" on the other. Before I refer to those authorities, I should mention that the ordinary meaning of the word "know" means "be cognisant or aware of; to be acquainted with ... as by sight, experience, or report". The word "knowledge" has a similar meaning. "Belief" means "conviction of the truth or reality of a thing, based upon grounds insufficient to afford positive knowledge". See Macquarie Dictionary. The word "suspect" has a meaning "to imagine or believe to be rightly chargeable with something stated, usu. something wrong or something considered as undesirable, on little or no evidence..." The word suspicion has a similar meaning. See Macquarie Dictionary. As the Court of Appeal said in Wicks v Marsh; Ex parte Wicks [1993] 2 Qd R 583 at 586:

"There are, of course, gradations of belief or knowledge extending from a slight inclination of opinion to complete assurance."

11 In my view, the ordinary meanings of "suspicion" and "belief" and "knowledge" reveal that the words are located on a graded scale of meaning.

12 Like the Court of Appeal in Wicks v Marsh (supra), which was discussing a similar section with slightly different language, uninstructed by authority I would have concluded that the phrase "which may be reasonably suspected of being stolen or unlawfully obtained" stated a minimum requirement only. Like the Court of Appeal, if the nice distinctions between suspicion and knowledge (and belief) are to be applied, it would lead to the result that the stronger the grounds were for suspecting the property was stolen or unlawfully obtained, the less likely it would be that the person in possession of it was guilty of an offence under s 69. However, like the court in Wicks v Marsh (supra), it is necessary for me to consider the authorities.

13 The genesis of s 69 can be traced back through New South Wales legislation and into English legislation passed in 1839. The history is referred to in Moors v Burke [1919] HCA 32; (1919) 26 CLR 265 and Ryan v Dimitrovski (1996) 16 WAR 457. Similar legislation has been enacted in other Australian states.

14 In Homes v Thorpe [1925] SASR 286, the accused was found in possession of certain goods and charged under the section the equivalent of s 69 of the Police Act 1892. The headnote to the case reads:

"Where a defendant has unlawfully in his possession personal property which was not suspected of having been stolen at the time it was in his possession, but which was believed to have been stolen at that time, he cannot be convicted of the offence of unlawful possession."

15 In Henderson v Surfield & Carter [1927] SASR 192, the respondents were charged with having in their possession a bag of wheat reasonably suspected to have been stolen or unlawfully obtained. A railway detective saw the respondents take possession of the bag of wheat. On appeal by the prosecutor against the dismissal of the charge, the Full Court of the South Australian Supreme Court said that:

"To feel absolutely certain of the guilt of a really innocent man is not to 'suspect' him. Suspicion lives in the consciousness of uncertainty ... where the evidence of the supposed suspecter shews that he had such a knowledge of events as more probably to convince him that he saw actual stealing than to lead him to suspect stealing had been committed, sec. 71, in our judgment, is not applicable."

16 The subject arose again in South Australia a few years later. In Lenthall v Newman & Newman [1932] SASR 126, a person was apprehended and asked whether goods found in her possession had been obtained from shops which had not been paid for, and the accused answered "yes". The witness testified that he suspected that the goods had been stolen or unlawfully obtained. The Magistrate dismissed the complaint. In this case, the appeal was allowed. The Court said:

"In each case the Special Magistrate has proceeded upon the view that 'no one can be said to suspect what he believes to be true'. In our opinion that is manifestly untenable, as applied to the provisions of this section, and we are satisfied that there is no authority for the dismissal of either of the cases upon the ground stated ... We see nothing in the Act which justifies the Courts in refusing to give effect to the intention of the Statute upon the ground that the prosecution has, or should be able to procure, the evidence to support a charge of larceny or receiving."

17 The Court explained Henderson v Surfield (supra). It said of that case:

"The Full Court took the view that it is an abuse of the English language for a witness to say:- 'I suspect that the watch produced is stolen property. It is my watch. The defendant knocked me down, and stole it out of my pocket.' When evidence like that is given, it cannot be said, in any fair sense of the words, that the witness is testifying to a reasonable suspicion that the watch is property which has been stolen or unlawfully obtained. It is a burlesque of the proceedings contemplated by the section."

"It is very difficult to believe that Parliament intended that the section should be used merely for the purpose of depriving defendants, in plain straight-forward cases, of their rights to a trial by jury, and to the benefit of the ordinary presumptions of innocence. If the circumstances make it apparent that the special procedure is being used for that purpose, we may be required to give effect to the intention of the legislation by refusing to countenance a clear abuse of the provisions of the Statute; but in the meantime we are justified in adopting a construction which confines the operation of the section according to the spirit and intention of the enactment."

19 The subject arose again about 40 years later in South Australia in Raynal v Samuels (1974) 9 SASR 264. By this time, O'Brien v Reitze (supra) had been decided in this State by Wickham J, whose dicta followed the dicta in Lenthall v Newman & Newman (supra). On the facts in Raynal v Samuels (supra), it was held that the police officer had a suspicion only that the goods had been stolen by the defendant and that the conviction by the Magistrate should be affirmed. The Full Court of the South Australian Supreme Court said at page 266-267:

"... we think that essentially knowledge for present purposes, which excludes mere suspicion, is ... ability 'to testify to all the ingredients essential to the charge of a specific offence, without recourse to information and belief'."

20 The Full Court saw difficulty in reconciling the decision in Homes v Thorpe (supra) with that in Lenthall v Newman & Newman (supra). It also said, in referring to the Judge's decision below:

"We sympathise with the learned Judge's dissatisfaction with the distinction between the concept of knowledge on the one hand and suspicion (including belief) on the other. It may be that, as has been suggested in several cases, the courts would have to devise some protection to a person who is subjected to prosecution under the section in such circumstances as to constitute abuse. But these considerations do not arise for determination in this case."

21 In Morrissey v Downing (1985) 1 WAR 304, Wallace J dealt with an appeal from a dismissal of a charge under s 69 on the basis that the complainant did not "actually" know that the goods were stolen and that the accused should have been convicted. In Simpson v Correia (1995) 13 WAR 525, Parker J dealt with an appeal in which the appellant had been convicted under s 69. One of the grounds of appeal was that the complainant did not have a mere suspicion that the property was unlawfully obtained. Parker J reviewed some of the authorities referred to above and some other authorities to which I have not referred. His Honour considered that there was no "abuse" of the sort referred to in Lenthall v Newman & Newman (supra); he noted the distinction between "knowledge" and "suspicion" which had been referred to in the South Australian cases, but decided that it was unnecessary to explore the correctness of that distinction because neither the complainant nor the other investigating police had "knowledge" in the sense they were able to "testify to all the ingredients essential to the charge [of receiving] without recourse to information and belief".

22 With that background, I turn to New South Wales and Queensland authority. I agree with Halse Rogers J in R v Grace (1930) 30 SR (NSW) 158, where he said concerning a provision similar in form to s 69, at page 163:

"In our opinion Parliament did not intend that a nice distinction between suspicion and belief should be drawn in such a way as to limit the offence to cases of 'suspicion and no more'. We think that the words were intended to indicate a minimum and not a maximum as regards proof; that no man should be called upon to answer unless there were at least reasonable suspicion, but not that a man should be entitled to avoid answering, and go free of a charge, if there were some stronger feeling of mind than suspicion."

23 The Queensland Court of Appeal in Wicks v Marsh (supra) agreed with that conclusion; so too did Abadee J in R v Chan (1992) 28 NSWLR 421 at 433, and Steytler J in Ryan v Dimitrovski (supra) at 478-479 referred to the latter judgment with apparent approval.

24 In Wicks v Marsh (supra), the Court of Appeal also dealt with the argument that it is an abuse of process to use the summary procedure provided by the Queensland provision equivalent to s 69 to deal with "ordinary" cases of receiving. The same argument is advanced by the respondent in this case. The argument is that where the prosecution has sufficient evidence to support a charge of an indictable offence of stealing or receiving, then it should lay that charge and not lay a charge under s 69, which casts an onus on the accused to give an account of how he or she came by the thing. The Court of Appeal identified the cases which suggest that it would be an abuse to lay a charge under s 69 rather than proceeding by way of indictment on the more serious charge. The Court of Appeal then said in Wicks v Marsh (supra) at 587:

We have some difficulty in understanding how it works an injustice to charge an accused person with a lesser offence (attracting a lesser penalty) which can be proven in a summary way, simply because a more serious charge could also be made out for which the accused would be tried by a judge and jury. To quote Mayo J in Hewitt at 393-394:

'I do not understand why the institution of a lesser charge (provided the evidence is of such a nature as to justify conviction) should be deemed to be unjust. ... The motive for proceeding under the section is irrelevant, if the evidence discloses circumstances justifying a conviction'..."

25 I respectfully agree with those observations. In any event, there was no application made to stay the proceedings.

26 Finally, I turn to the question as to who must hold the suspicion. The assumption in some cases has been that the suspicion must be the suspicion of the prosecutor or arresting authority.

27 The Court in Ryan v Dimitrovski (supra) noted that in O'Brien v Reitze (supra), Wickham J said that under s 69 it must be shown that the complainant suspected that the thing had been stolen. However, Steytler J in Ryan v Dimitrovski (supra) held at page 178 that s 69 does not require any particular person to form the suspicion. The Chief Justice agreed. It is a matter for the court hearing the charge to reach an objective conclusion from the evidence led as to whether or not the goods might reasonably be suspected of being stolen or unlawfully obtained.

28 As I have noted above, the learned Magistrate decided to dismiss the charge because he considered that Constable Quail-Smith "knew" that the goods had been stolen. That was an error in law on the Magistrate's part. The Court was required to reach an objective conclusion as to whether or not it might reasonably be suspected that the scrimshaw had been stolen or unlawfully obtained. The decision must therefore be quashed.

29 In my opinion, this is an appropriate case for exercising the powers of this Court under s 199(1)(c) of the Justices Act to substitute the decision that ought to have been made by the Magistrate. I therefore turn to the evidence in the case. Mr Cross gave undisputed evidence that the scrimshaw was stolen. There was no proof that it was stolen by the accused. In my opinion, the circumstances therefore established beyond reasonable doubt that, viewed objectively, the scrimshaw might reasonably be suspected of being stolen or unlawfully obtained.

30 I would therefore quash the decision of the Magistrate and order that a conviction be recorded.

31 I will hear the parties as to whether I should remit the case to the Magistrate for him to decide on the penalty to be imposed or whether I should make that decision.

Mclennan v Campbell [2003] WASCA 145

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Mclennan v Campbell [2003] WASCA 145 (27 June 2003)

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