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[2015] WASC 340
General information, not legal advice.
Supreme Court of WA
2015-09-11
Jenkins J
Original judgment source is linked above.
1 This is an appeal from the decision of a magistrate sitting in the Magistrates Court at Kalgoorlie on 25 August 2014, to convict the appellant of the following offences:
(1) possession of a prohibited drug, namely methamphetamine, with intent to sell or supply it to another (prosecution notice KA 2051/12);
(2) possession of a prohibited drug, namely cannabis, with intent to sell or supply it to another (prosecution notice KA 2052/12); and
(3) possession of $68,798.25, in cash, that was reasonably suspected to be unlawfully obtained (prosecution notice KA 2053/12).
3 The appellant requires leave to appeal on each ground of appeal. If a ground of appeal has reasonable prospects of succeeding, I ought to grant leave to appeal on that ground. Therefore, I will consider the merits of each ground of appeal before I decide whether to grant leave to appeal on any ground.
4 The appellant was charged with the following offences:
(1) on 13 February 2012 at Boulder with intent to sell or supply to another, had in her possession a prohibited drug, namely methamphetamine, contrary to the Misuse of Drugs Act 1981 (WA) s 6(1)(a);
(2) on 13 February 2012 at Boulder with intent to sell or supply to another, had in her possession a prohibited drug, namely cannabis, contrary to the Misuse of Drugs Act 1981 (WA) s 6(1)(a); and
(3) on 13 February 2012 at Boulder was in possession of $68,798.25 in cash that was reasonably suspected to be unlawfully obtained contrary to the Criminal Code (WA) s 428(1).
5 The hearing of the charges took place on 28 31 July 2014. At the conclusion of the hearing the magistrate reserved his decision. On 25 August 2014, the magistrate convicted the appellant of all three charges. On 2 October 2014, the magistrate sentenced the appellant to 9 months' imprisonment and 3 months' imprisonment, concurrent, for the charges of possession of methamphetamine with intent to sell or supply and possession of the cash, respectively. Those sentences of imprisonment were suspended for a period of 12 months. The magistrate fined the appellant $500 for the offence of possessing cannabis with intent to sell or supply.
6 The magistrate also made orders for costs, destruction of the drugs and forfeiture of $68,798.25. The appellant also seeks to have those orders set aside if her appeal against her convictions is successful.
7 Relevantly, the Misuse of Drugs Act s 6 says:
(a) with intent to sell or supply it to another, has in his possession;
...
8 There is no dispute that methamphetamine and cannabis are prohibited drugs.
9 The Misuse of Drugs Act s 11(a) provides that for the purposes of s 6(1)(a), a person shall, unless the contrary is proved, be deemed to have in her possession a prohibited drug with intent to sell or supply it to another if she has in her possession a quantity of the prohibited drug which is not less than the quantity specified in the Act sch V in relation to the prohibited drug.
10 The prosecution case was that the appellant had in her possession a quantity of methamphetamine which was not less than 2 g, being the quantity specified in the Act sch V. Thus, as it was proved that the appellant had not less than 2 g of methamphetamine in her possession, the presumption of intention to sell or supply the methamphetamine arose in respect of the charge related to methamphetamine.
11 The respondent did not allege that the appellant had in her possession a quantity of cannabis which was not less than the quantity specified in the Act sch V. Thus, the presumption of intention to sell or supply did not arise in respect of the charge related to cannabis.
12 The appellant testified that she did not use prohibited drugs. There was no evidence that the appellant did use drugs. Thus, it was not in dispute that if she was in possession of the drugs, it was for the purpose of sale or supply. Rather, the issue for the magistrate was whether the respondent had proved that the appellant possessed the drugs seized by the police at her home.
13 In 2013 the Criminal Code s 428 was repealed and reenacted. Section 428, as it was in 2012, provided:
Possessing stolen or unlawfully obtained property
(1) A person who is in possession of anything capable of being stolen that is reasonably suspected to be stolen or otherwise unlawfully obtained is guilty of an offence and is liable to imprisonment for 2 years and a fine of $24,000.
(2) It is a defence to a charge of an offence under subsection (1) to prove that at the time the accused was allegedly in possession of the thing, the accused had no reasonable grounds for suspecting that the thing was stolen or unlawfully obtained.
14 The appellant did not rely on the defence in s 428(2). Neither did she dispute that she possessed all but $556.05 of the cash seized by the police at her home. The issue in respect of the charge pursuant to the Criminal Code s 428 was whether the cash was reasonably suspected of being unlawfully obtained.
15 On 13 February 2012, a search warrant issued under the Misuse of Drugs Act, was executed at the appellant's home in Boulder. The police made an audio visual recording of the search which was played at the hearing. The police recorded the initial execution of the search warrant, the caution which was given to the appellant and a pan of the appellant's home. The camera was then turned off for considerable periods of time but the recording recommenced when the police found an item of interest. The seizure of that item was recorded as was any conversation with the appellant about the item. The appellant was present during the search and answered the police officers' questions addressed to her.
16 The appellant told the police that she lived at the premises with her, then, 15yearold grandson, Owen. The house comprised several rooms and an elaborate sleep out area and backyard. The property was overly full of household and personal items.
17 It was not in dispute that the items listed in the below table were found in the appellant's home in the following order and in the locations listed alongside the items.
$455 in loose notes, $355 in notes in a large clip seal bag and $1,330 in notes in an envelope marked 'Power'.
Above or in guttering running just below ceiling height in a rear outdoor enclosed living area
The cannabis was in 3 small bags. $550 in notes, $6.05 in coin, the bags of cannabis, a small plastic bag with '400' written on it and a piece of paper with 2 columns of '400' written repeatedly were found in a large plastic bag. The word 'Pat' was written at the top of one column of numbers on the piece of paper. $84.20 in notes and coins were found in a purple purse.
In the sleeve of an outfit worn by a mannequin standing in the front lounge room
Six small clip seal bags of methamphetamine were contained in an envelope, wrapped in cling film. Written on the envelope were the words '1 gram'. Underneath that was written '$1,000'. At the other end of the same side of the envelope was the sum:
Underneath a cloth on a tray being held by the mannequin in the front lounge room
Under a piece of carpet near the mannequin in the front lounge room
Loose $50 note in an envelope. Envelope marked 'Owen'.
Notes in nine envelopes of various colours and sizes. One envelope marked '$800'. Other envelopes marked '$400'.
Loose notes in three envelopes. Envelopes wrapped in cling film.
Under carpet behind glass cabinet in front lounge room in three bags
The first bag contained $17,035, the second bag contained $14,533 and the third bag contained $19,060.
Large plastic garbage bag behind door leading to the passageway
Notes contained in pencil cases, wallets and purses.
Small amount of methamphetamine in small clip seal bag. Nearby was a quantity of empty small clip seal bags inside a large clip seal bag, wrapped in cling film.
18 The total amount of methamphetamine found was 2.42 g. On my reading of the magistrate's reasons and on my assessment of the recording of the search, the police located seven small clip seal bags containing methamphetamine. At the end of the search, the appellant was provided with receipts for all the items seized and at that point in the audio visual recording there appears to be a reference to eight small clip seal bags. The certificates of drug analysis tendered by the respondent at the hearing also related to eight quantities of methamphetamine. This discrepancy was not an issue at the hearing or at the hearing of the appeal. The parties have proceeded on the basis that the tendered certificates of drug analysis prove the amount of methamphetamine seized from the appellant's home and the audio visual recording of the search discloses the location and storage method of the methamphetamine. I will determine the appeal on the same basis.
19 At the commencement of the search and before any items were located, the appellant was asked whether there was anything in the house. She said that there was just some money in her purse. When the $315 was located under the carpet mat in the laundry (1), the appellant stated that the money was saved for laybys and bills, including her power and water. She said that she had put the money there the previous day because she had been in Kambalda. She said that she had no more money. Later, during the search she said that maybe $50 of the $315 had been given to her by a person she knew to be selling drugs.
20 Later, again, during the search the appellant said that the entire sum of $315 had been given to her by a man who she had seen acting suspiciously in the lane near her house (the drug dealer). She said that she had become aware that the drug dealer was selling drugs out of his car. She said that he had given her some money and had also left other money with her to keep for him. When the $2,140 was located (2), the appellant said that the drug dealer had given her $200, three months earlier. At another point in the search the appellant said that over a period of nine weeks she had received from the drug dealer, maybe, $950 which she had spent.
21 After the $2,140 was located the police asked the appellant if there was any further money in the house and she answered, 'No'. She also said that there were no drugs in the house.
22 The appellant told the police that the money found in the guttering (3) was from the sale of drugs by the drug dealer and the bag had been given to her by him. She said she had put the bag in the guttering and forgotten it was there. She said that she was scared of the drug dealer. The appellant denied knowledge of the cannabis (3) and said that the note found in the bag with the cannabis was written by the drug dealer. She said he had put the word 'Pat' on the piece of paper so he could say it was 'yours' [sic]. I digress to note that in evidence the appellant acknowledged that she had written the note.
23 The appellant acknowledged to the police conducting the search that two other purses found in the guttering were hers. She denied that there was any more cash or dugs on the property.
24 During the search, the appellant denied any knowledge of the methamphetamine found in the sleeve of the outfit on the mannequin (4) and any knowledge of the $300 (5) located under the fabric on the tray held by the mannequin.
25 The appellant acknowledged ownership of the $50 in the envelope marked 'Owen' (6) and said that it was for her grandson to take to soccer.
26 Both before and after the discovery of that $50 the appellant said she had nothing else in the lounge room and nothing else to declare to the police.
27 After the first envelope was discovered under the carpet (7), the appellant acknowledged that there was other money under the carpet but said, falsely, that there was not thousands of dollars. When the total of ten envelopes containing $4,650 were discovered in the same area (8), the appellant said that it was money she was saving to buy a car. She said that she had been putting $400 per month away for a car which she planned to purchase through a finance company. She said that she planned to purchase the car for $12,000. At another point she said that it would cost $14,999. The appellant denied that the money was from the sale of drugs and said that she had forgotten that it was there.
28 During the course of the search, the appellant acknowledged that she was receiving Centrelink payments. She also said that she had been working at the Main Reef Hotel, apparently a local Boulder hotel, up to about three to four months previously, when it had closed. She said that she received a tax return of approximately $2,500 and a redundancy of about $3,000. The appellant gave inconsistent and confusing accounts to the police officers about the amount of money she had earned legitimately and whether or not she had spent it. She did not mention that she had received a substantial inheritance in cash.
29 The appellant told the police that she had not hidden her money; rather she had kept it in safe places. She said that it was not in the bank because she did not want Centrelink to know about it.
30 Two bank statements were located by the police. One was a Westpac Bank statement which showed a balance of $44,000 in an account in the appellant's name. The other was an ANZ Bank statement which showed a balance of $29,000 approximately. These statements were located by the police after the appellant had told the police that she had approximately $8,000 in her bank accounts.
31 There were a number of personal papers found with the money in the purses located behind the door leading to the passage way (11). These papers related to utilities' accounts and similar types of payments. The appellant told the police that the $8,975 was for the payment of bills. She nominated bills such as water, rates, power, gas and ambulance. Later documents seized by the police showed that the appellant's electricity account was $23,482.45 in credit, her Christmas Club account was $11,620 in credit, her gas account was $1,170.19 in credit, her rates were $6,882.50 in credit, and her Telstra account was $2,915.47 in credit.
32 When the clip seal bag containing methamphetamine and the quantity of small clip seal bags were located under the kitchen carpet (12), the appellant denied any knowledge of the drugs or bags.
33 Towards the end of the search, the appellant told the police that she had worked all her life, including at a café and cleaning houses.
34 The prosecution also called evidence from Mr Neal Barlow, a Senior Forensic Accountant, and his report was tendered (Mr Barlow's report). Lastly, the prosecution called Ms Lisa Fairlie who had worked at the Main Reef Hotel. The magistrate also had a view of the appellant's home.
35 The appellant gave evidence in her defence. She denied knowledge of the drugs but admitted possession of the money seized by the police, other than that found in the bag with the cannabis. Apart from a small amount she said she had received from the drug dealer, who in her evidence she called Rocky, she said she had earned the money or received it from her father.
36 The appellant also called evidence from Ms Nola Gregory about her work history and from her son, Mr Lloyd Rundle. By consent, the appellant read into evidence the statement of Ms Dorothy Kinna.
37 The remainder of the evidence will only be referred to the extent that it was referred to in the magistrate's reasons or if it is necessary to refer to it to determine a ground of appeal.
38 The magistrate commenced with an outline in summary form of the elements of the offences and statements of the burden and standard of proof. No complaint is made about these aspects of the reasons.
39 The magistrate noted that certificates of analysis were tendered by consent (exhibits A1 A6) which proved the nature and quantity of the drugs seized at the appellant's home.
40 The magistrate summarised the content of the audio visual recording of the search of the appellant's premises on 13 February 2012.
41 The magistrate noted that the cash seized had been forensically tested for traces of cannabis but nothing was located. His Honour said that the respondent police officer testified that the cannabis found in the appellant's home was packed in clip seal bags with the same appearance as those bags seized by police from under the carpet in the kitchen. The magistrate concluded that this was evident also from photos of those items.
42 The magistrate referred to a recording of an intercepted phone call between the appellant's daughter and her partner, Mr Khanas Cooper, in part, about the seizure of items from the appellant's home. His Honour said that Mr Cooper could be heard suggesting to the appellant, who was listening in to her daughter's side of the conversation and making comments of her own to Mr Cooper, 'Just tell them it was mine'.
43 Although Mr Barlow concluded that, during the period of financial records provided to him, additional unexplained assets or income totalling $216,640.20 were held by the appellant, the magistrate thought that Mr Barlow's report was useful only in a broader sense. This was because Mr Barlow's report relied on assumptions about expected minimum expenditure, which may not have applied to the appellant. Further, the report examined only a period of 8½ years and the appellant had stated that she had been accumulating cash over a much longer period of time. Neither did Mr Barlow's report take into account windfalls or possible legitimate cash payments to the appellant.
44 The magistrate noted the evidence of Ms Fairlie which his Honour concluded was truthful, but not particularly helpful. Although Ms Fairlie confirmed the appellant's employment at the Main Reef Hotel she was not able to state the appellant's hours of work, the appellant's pay or whether the appellant was paid in cash by the hotel management. Neither was she able to say if hotel patrons paid the appellant cash for doing cleaning or ironing work.
45 The magistrate summarised the appellant's evidence in the following terms:
The accused stated she suffers from depression and anxiety for which she takes medication. She has poor literacy and numeracy skills.
She resides with Owen, her grandson, who is aged 17. For a five or six week period over the Race Round in the year preceding the search, a man named Rocky resided with her in a caravan in her rear yard. He bragged of selling cannabis in a laneway abutting the rear of the accused's house. In relation to the items found in the gutter by the police, she agreed she put her purse there, but had no knowledge of a bag containing cannabis.
She denied, she said, on the video that she had put the bag there and denied that she knew of the cannabis. She had clearly said so on the video. She agreed the envelope found in the same location with 'Pack 400' on it was her handwriting. She indicated the methylamphetamine in the mannequin she thought may have been put there by her son-in-law, a reference I take to be Khanas (sic) Cooper. She was not sure. She denied the envelope depicted in exhibit C4, found with the methylamphetamine bore her handwriting.
She denied knowledge of the methylamphetamine located in the kitchen. She said the money seized by the police was her savings from work. She testified that she had been cleaning houses for 20 years. She stated that she was doing this, sometimes twice a day, once a week, one every second day or something, nine houses a fortnight. She said she was always paid cash, which she started putting in pencil cases by way of saving and to pay bills. She was asked by a solicitor why she didn't bank the money. To my mind the question wasn't answered. The accused's response was - and I quote:
'Well, on Centrelink, when I went to my accountant to do my tax, she said you should put some money into super because in Centrelink you've got an investment in your house.'
She testified about lending money to her children from time to time and that money being repaid. She testified that Jack Claritage deposited funds to her Westpac account. Those funds are not the subject of the present charges. She said she was paid cash by the Main Reef Hotel.
Later she was asked to, and did open an ANZ bank account in order that her pay could be deposited directly. She testified that she ironed for inter alia residents of the accommodation units of the Main Reef Hotel. She averaged two baskets per day, between $30 and $50 per basket. She testified that she cleaned homes for Charlie Park, a missing person, a home in Hopkins Street, a home in Dart Street, a home in King Street and a couple of doctor's houses (ts 49 - 50, 25 August 2014).
46 The magistrate noted that the appellant did not adduce evidence from any of the people for whom she said she worked. He found that her evidence in recalling names and addresses was 'hesitant and confusing'. His Honour said that this was especially so given that she testified that, 'I've got all of that at home' which his Honour took to be a reference to records of those details.
47 The magistrate noted that in evidence the appellant agreed that she told the police that she worked 36 hours a week at the Main Reef Hotel earning $16.50 per hour. His Honour said that that would amount to an annual payment of $28,520 gross but that the evidence was inconsistent with the records of deposits to her ANZ Bank account.
48 I note that the appellant's bank statements record the following direct deposits by Main Reef Pty Ltd into the appellant's ANZ bank account from early November 2006 mid July 2011:
49 The magistrate said that the appellant had agreed in evidence that she may have only worked 36 hours per week at the Main Reef Hotel for between seven and ten weeks per year. He also noted that that the appellant's explanation for why this evidence differed from what she said to the police during the search, was that she was confused when she spoke to the police during the search.
50 The magistrate then referred to the evidence relating to an inheritance[1] which the appellant claimed to have received from her father. He observed that it was cash delivered to the appellant by Ms Kinna, the appellant's aunty. The magistrate noted that the appellant testified that she did not count the money. Rather, she packed it away in a side cupboard, where she stored the pencil cases containing cash. She said that the inheritance may have been $40,000. He noted that she was unsure whether she received that money in 2000 or 2002.
51 The magistrate then touched on the unsigned statement of Ms Kinna, which had been tendered by consent. He noted that the statement said that in 2002 Ms Kinna gave the appellant a potato bag containing an envelope which Ms Kinna had been told contained $40,000. Ms Kinna's statement said she did not open the bag and she did not see the cash. The magistrate said that Ms Kinna's statement also said that she was aware that the appellant did housecleaning and ironing.
52 The magistrate then mentioned the appellant's evidence that she had lent a total of $11,000 to her son, Lloyd, over a number of years.
53 The magistrate referred to the appellant's testimony that she was a frugal spender. He noted that she denied that any money found with the cannabis or the methamphetamine was hers.
54 The magistrate observed that the appellant had testified that she would give evidence later about why she had said certain things in the intercepted telephone call with Mr Cooper. The magistrate pointed out that she did not give such evidence. Further, the magistrate found that the appellant had been unable to testify in a satisfactory manner as to when Mr Cooper had last visited her home prior to the execution of the search warrant.
55 The magistrate also noted that the appellant had been unable to provide the surname of Rocky, the drug dealer who sold drugs from her rear laneway and who she testified had stayed for a time in her back shed. The appellant testified that after the execution of the search warrant at her home, she asked Lisa, Rocky's former partner, and her neighbour, to tell Rocky that his money was gone.
56 The magistrate related that, in her evidence, the appellant had agreed that some of Rocky's money was under the mat in the laundry. She denied putting it there, but she acknowledged that she knew that it was there. The appellant testified that she did not remember saying to the police that she was paid regularly by Rocky to keep quiet about his drug dealing. Rather, she said that she received some of the money from Rocky at the racecourse where she believed he worked.
57 The magistrate recounted that in her evidence the appellant had agreed that she had tried to walk up to the mannequin in the front lounge room, moments before the police searched it. However, she denied that she did this to in order to ensure that the drugs, which were located in its sleeve, were hidden. The appellant testified that she had wanted to show the police how the mannequin worked. The magistrate rejected this explanation as he said that a demonstration of the operation of the mannequin was unlikely to take place during the execution of a police raid on the appellant's home.
58 The magistrate considered the appellant's evidence concerning her housecleaning. He noted that she was unable to offer the names of the doctors' houses which she cleaned. The magistrate summarised the appellant's evidence about her housecleaning in the following terms:
(1) she cleaned Charlie Park's house perhaps once per fortnight for 11 years at $50 per clean;
(2) she may also have done additional cleaning after parties at Mr Park's home;
(3) when the appellant was pressed by the prosecutor to provide the names of other persons whose homes she cleaned on a regular basis, the appellant offered the names of 'Harry', 'Mark' and an 'Irish chap', all of whom occupied the same rented house. She did not know any of their surnames. The appellant said that this work started in 2010 at a rate of about $150 per week for about two and a half years. She did not know of anybody who could corroborate her evidence in this respect;
(4) she cleaned Tracy Berlin's home at $100 per week for three or four years. She said that Ms Berlin had gone to Queensland and she did not know whether her former partner still lived at Ms Berlin's former home or not; and
(5) she cleaned Jack Addison's house at $100 per week for three to four years. She did not know where he was although she had heard that he had moved to Merredin.
59 The appellant admitted in her evidence that she had not declared any of her housecleaning money to Centrelink.
60 The appellant testified that she should have declared the cash that she had in the house to the police when they asked about it but she agreed that she had not done so. She also agreed that she had not told the police officers about the inheritance she had received from her father.
61 The magistrate stated that the appellant had agreed that the police had located in the guttering, a plastic bag containing three bags of cannabis and what is known as a 'tick list'. However, the magistrate said that he made no finding as to whether what was located was in fact a 'tick list'. This was a reference to a piece of paper with '400' written on it in figures, repeatedly. The appellant testified that this list was in her writing and that it was found in the bag with the cannabis and cash. She said that she did not know how the list, in her handwriting, got into the bag and said that it should rather have been in the front lounge with the envelopes containing money. She also agreed that she owned the purses found in the guttering.
62 The magistrate observed that the appellant agreed that the methamphetamine found in the sleeve of the clothing on the mannequin was in six bags inside an envelope wrapped in cling wrap. Further, that some of the cash found by the police and which the appellant said belonged to her had also been contained in envelopes wrapped in cling wrap. The appellant said that she had wrapped the money in cling wrap because her fish tank had cracked and water had spilt from it. Apparently, it was an attempt to keep the money dry. The appellant also agreed in evidence that the small clip seal bags located in the kitchen area were also wrapped in cling wrap. She agreed that the empty clip seal bags looked the same as the bags in which the drugs were packaged.
63 The appellant agreed in evidence that she kept some of her money under the carpet for safety reasons. The appellant agreed that if someone else had been hiding drugs in her house there were many other hiding places that they could have chosen, other than under pieces of the carpet. Despite the similarity between the location of the clip seal bags and one bag of methamphetamine and the hiding places she had chosen for her cash, the appellant denied that she had hidden methamphetamine and clip seal bags under the carpet.
64 The magistrate said that the appellant was unable to provide any explanation as to why she had bundled her cash in $400 lots.
65 The magistrate referred to the evidence of Ms Gregory, who is the daughter of Charlie Park. Ms Gregory testified that the appellant had cleaned her father's house, and done her father's ironing. She said that the appellant had been paid in cash. Ms Gregory also said that she was aware that the appellant was a housecleaner but was unable to testify as to any specifics of that work. She agreed that she was not always present when the appellant cleaned her father's home or was paid by him.
66 The appellant's son, Lloyd Rundle, testified that a bloke named Phil had lived with his mother. He did not know Phil's second name. The magistrate noted that at this point in her son's testimony the appellant interjected and said 'that's Rocky'. Mr Rundle then testified 'That was in March 2012'.
67 Mr Rundle agreed that his mother had lent him money over the years to purchase motor vehicles. He said that he had received a $2,000 deposit for a motorcycle from his mother.
68 My assessment is that Mr Rundle's evidence was in direct conflict with the appellant's testimony as she said that she lent him $6,000 for a deposit for the purchase of a motorbike. The appellant's and her son's evidence about the amount of money she had lent him to buy a station wagon also differed. The appellant testified that she lent her son $3,000 about 12 months before the execution of the search warrant in February 2012; whereas Mr Rundle testified that she lent him $2,000 in about October 2010.
69 Mr Rundle confirmed his mother did cleaning and ironing work. Asked how he knew that, he answered, 'Because she has mentioned it to me' and later, 'And I dropped her off a couple of times at jobs'. When asked how he knew the appellant did laundry, he answered, 'Because she has told me' and later, 'And I have seen her doing it'.
70 The magistrate made adverse findings of the appellant's credibility in the following terms:
It is difficult to accept the [appellant] as a witness of the truth. She clearly lied on a number of occasions in the search video, for example, as to the presence of cash in her premises when asked by the police and secondly, as to the amount of money in her bank accounts. The lies in relation to the presence of cash in the house cannot, in my view, be explained by stress, in view of the repetitive nature of those lies and her explanation that some of the cash was going to be used, 'today' to pay bills.
How could she have forgotten about that? She lied either about the money being given to her by Rocky to keep quiet re drug dealing or about the money being legitimately earned. She cannot have it both ways. She exaggerated, I find, intentionally about her hours of work at the Main Reef Hotel in an attempt to explain the cash located by the police. I find it difficult to accept that she had a person called Rocky living with her and she could not provide a surname for that person.
Additionally, the dates on which he is said to have lived with her are in conflict, when compared with the evidence of her son, if indeed, Phil and Rocky are the same person. I find it difficult to accept that she did not count the money purported received by way of an inheritance. Neither the evidence of Kinna, nor the [appellant] could establish the amount of the inheritance, in any event. Their evidence re housekeeping, cleaning, ironing and jobs lack specificity and any corroboration of a meaningful type.
The corroboration of the testimony of Kinna in an unsworn statement [sic], Lloyd, based largely on what he had been told by his mother and Gregory, based on limited first hand knowledge, carries little weight, in my view. Balanced against this, no explanation is given as to why the records apparently held at the home were not produced or relied upon to locate potentially corroborating witnesses. Little, if any, appears to have been done by the [appellant] to call, for instance, the partner of Ms Berlin or Mr Addison, who she believed resides in Merredin (ts 53 54, 31 July 2014).
The Police were, in my view, properly able to reach the view that the cash seized was reasonably suspected of being stolen or unlawfully obtained, in light of firstly, the [appellant's] declaration that she was holding some or had been paid some of that money by a drug dealer. Secondly, her lack of candour about the presence of cash in her premises and thirdly, the fact the cash was, at least in some instances, found with or in close proximity to drugs. As to the drugs, I find that in view of the following matters:
(a) That they were located in the [appellant's] home.
(b) That she resided there only with her grandson.
(c) They were found, in relation to cannabis, with her personal possessions.
(d) In relation to some of the methylamphetamine, it was found under carpets where she admitted that she also hid cash for safety reasons.
(e) That in relation to some of the drugs, they were wrapped in glad wrap, as was some of the cash which she admitted was hers.
(f) That some of the drugs were in clipseal bags of the same type as those again located under carpets, where as previously stated, she hid cash and used as a hiding spot.
... I'm satisfied that not only did she possess the drugs, but she did so knowingly, having tried to secrete their presence from the police or others who may have tried to locate them. She denied that she used drugs herself. The only reasonable inference to draw, even putting aside the legislative presumption in relation to the methylamphetamine, is that she had them for the sole purpose of selling or supplying them to others.
In light of the cash located, for which I am not persuaded the accused has provided a lawful explanation on a balance of probabilities, I find the accused is involved in the distribution of drugs for commercial gain. Judgments of conviction will be recorded in respect of all counts (ts 54 55, 31 July 2014).
72 The appellant's written submissions contain the assertion that in order to convict the appellant of the offence relating to the possession of $68,798.25, the magistrate had to be satisfied that the whole of that sum was unlawfully obtained and that the magistrate made no adequate finding in that regard. At the hearing of the appeal, the appellant's counsel conceded that the offence against the Criminal Code s 428(1) was proved even if the respondent only proved that part of the money was unlawfully obtained. That concession was right, for the following reasons.
73 For the offence against the Criminal Code s 428(1) to be proven, the respondent had to prove beyond reasonable doubt that the appellant had been in possession of cash, which was a thing capable of being stolen, and that at the time of the hearing, that cash was suspected to be unlawful obtained.
74 As I have already stated, this was not a case where the appellant was suggesting that, although the money was stolen or unlawfully obtained, she had no reasonable grounds for suspecting that at the time she was in possession of it (Criminal Code s 428(2)).
75 Pursuant to the Criminal Procedure Act 2004 (WA) sch 1 cl 8(2), as this was the case of an offence of being illegally in possession of a thing (cash) and it was alleged that the appellant was illegally in possession of more than one of the things ($68,798.25 in cash) at one time, she could, and was, charged with one offence of possessing all of the things (cash) in the one offence.
76 The sum of the cash that it was alleged that the appellant was unlawfully in possession of was a particular of the charge. It was not an essential element of it. As long as the magistrate was satisfied that the appellant possessed a sum of cash and that the magistrate reasonably suspected it to be unlawfully obtained, the appellant was guilty of the offence. The determination of the amount of cash which was reasonably suspected to be unlawfully obtained was a finding relevant to sentencing and to the order for forfeiture of the cash.
77 The magistrate found that the police were right in their view that the money was suspected to be unlawfully obtained. This could only be a finding that the magistrate too reasonably suspected the money to be unlawfully obtained. There is no appeal from this finding. There is only an appeal alleging that the magistrate failed to make adequate findings that the whole of the money was suspected of being unlawfully obtained.
78 If there had been a significant divergence between the particulars in the charge of the sum of cash alleged to have been possessed and unlawfully obtained and the evidence it may have given rise to an allegation that the trial had not been fair: Cotter v The State of Western Australia [2011] WASCA 202 [30] [31]. However, that is not the allegation in this appeal and nor could it be. At trial, the appellant was aware that the respondent alleged that all the money seized from her house was suspected of being unlawfully obtained and she had the opportunity to put the respondent to proof of the allegation.
79 Although not clearly expressed in the ground of appeal, the appellant's fundamental complaint is that the evidence could only support a finding that part of the money was suspected of being unlawfully obtained and the magistrate failed to make adequate findings supporting his finding that all the money found by the police was unlawfully obtained.
80 By the end of the evidence there was no issue that the appellant was in possession of all the cash found in her house, other than the $556.05 in the bag with the cannabis, because she had admitted that much in her evidence. The only issue was whether the respondent had proved that the cash or some of it was reasonably suspected to be unlawfully obtained.
81 His Honour gave the following reasons, in particular, for his finding that the money was reasonably suspected of being unlawfully obtained:
(1) the appellant had admitted that she was holding some of the money for 'Rocky' , a drug dealer, or that she had been given it by him;
(2) the appellant's dishonest assertions to the police that she did not have cash, and large amounts of it in her house; and
(3) some of the cash was found with or in close proximity to prohibited drugs which he found that she also possessed.
82 Given the other circumstances relating to the money, the magistrate's finding that the appellant was in possession of the drugs, was an important and probative finding leading to proof of the offence relating to the money. This was not because of any propensity reasoning. Rather, it was because possession of prohibited drugs by the appellant, when she was not a drug user, together with her possession of a large sum of cash was compelling evidence that she was selling drugs for cash. Thus, there was a reasonable suspicion the cash had been unlawfully obtained.
83 The magistrate had also found that he did not accept the appellant's evidence as to how she came to be in possession of the cash. He also found that the evidence of the defence witnesses as to the possible legitimate sources of the money carried little weight. In particular, he noted that the evidence of Ms Kinna was in an unsworn statement and the evidence of Mr Rundle and Ms Gregory was largely hearsay.
84 All these findings were open on the evidence and constitute adequate findings to support the magistrate's ultimate conclusion that the sum of money particularised in the charge was reasonably suspected of being unlawfully obtained.
85 It is clear that the magistrate's finding related to all, rather than part of, the money. This is not surprising given the way the case was run. The appellant's case was that most of the bank notes found by the police were her savings from decades of work and from an inheritance she had received from her father. She also told the police that she had received some of the money from a man who she believed was a drug dealer.
86 Once the magistrate rejected the appellant's evidence about the possible legitimate sources of the money and disbelieved her evidence that she did not know about the drugs found in her home, it was open to him to have a reasonable suspicion that all the money seized by the police had been unlawfully obtained. This is especially as the appellant's only proven sources of legitimate income were Centrelink payments paid into her bank account and income from the Main Reef Hotel which was also paid into her bank account from early November 2006 until midJuly 2011.
87 The balances in the appellant's bank accounts were not the subject of the charge. The financial investigation report tendered by the respondent was to the effect that few cash withdrawals were made from the appellant's bank accounts. I have examined the appendices to Mr Barlow's report which set out all the transactions through the appellant's bank accounts. I have confirmed for myself that very few cash withdrawals were made over the eight year period covered by the report. Further, the appellant did not tell the police or testify that the money seized from her home came from income originally deposited to her bank accounts. Thus, it was very unlikely that the money seized from the appellant's house came from legitimate government payments or wages from the Main Reef Hotel from early November 2006 onwards.
88 As the magistrate rejected the evidence called by the appellant to support other nondrug related income or found that it carried little weight, it was open for him to conclude on the basis of the remaining evidence that all the money seized by the police was reasonably suspected of being unlawfully obtained. In other words, the only evidence that the money seized by police came from legitimate sources came from the appellant and her witnesses. The magistrate rejected that evidence or found that it carried little weight. The remaining evidence supported, overwhelmingly, the conclusion that there was a reasonable suspicion that all the money was unlawfully obtained.
89 I agree with the respondent's submission that the grounds of appeal 1(b) (f) are particulars of a general complaint that the magistrate did not make findings of fact in favour of the appellant and did not accept the evidence called in her defence. Complaints that the magistrate did not make findings of fact in favour of the appellant, did not accept defence evidence or did not place significant weight on defence evidence are not appellable errors unless incontrovertible facts or uncontested evidence demonstrate that the magistrate was wrong or the decision was 'glaringly improbable' or 'contrary to compelling inferences'. Further, where, as in this case, the decision under appeal was affected by the magistrate's impressions about the credibility of witnesses, the appellate court must bear in mind and pay respect to the advantage of the magistrate in having seen and heard the witnesses: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [25] [31].
90 I will now consider grounds of appeal 1(b) (f) in detail.
Ground of appeal 1(b) - other people's access to appellant's home
91 Ground of appeal 1(b) can only relate to the drugs charges and the money found with the cannabis as the appellant admitted that the rest of the money seized by the police was hers or that she had put it where it was found.
92 The evidence established that the appellant lived in her home with her then 15yearold grandson, Owen. There was no evidence that the drugs or money belonged to Owen. The appellant testified that her friends and family visited her and that a man named 'Rocky' had lived in a shed at the back of her house for at least five to six weeks in about 2011. She also said that she had seen Mr Cooper coming out of her house some time before the police searched her house. However, she also testified that 'not many people come to my house' (ts 54, 30 July 2014).
93 In respect of the cannabis, the magistrate noted that it was found in a section of guttering where two of the appellant's purses were also found. It was found in a bag which the appellant admitted in evidence also contained her writing on a piece of paper. The appellant admitted that she had written '400' in figures repeatedly on the piece of paper. This happened to be the same figure she had written numerous times on envelopes containing money and the amount of money she kept in many of those envelopes. The cannabis was contained in small clip seal bags similar to those found in other parts of her house.
94 The appellant told the police that she had put the bag which was found to contain the cannabis in the guttering. Inconsistently with that statement to the police, in evidence the appellant denied any knowledge of the bag containing the cannabis. On the other hand, she told the police she had not written on the piece of paper found in the bag but, inconsistently, with that earlier statement in her evidence she admitted that she had written the list on the piece of paper found in the bag with the cannabis. These inconsistencies did not reflect well on her credibility.
95 The methamphetamine found in the sleeve of an outfit worn by the mannequin was also contained in small clip seal bags similar to those found elsewhere in her house. It was contained in an envelope wrapped in cling film which was the manner in which the appellant stored her money found elsewhere in her house. She said that she had wrapped her money in cling film because she had had a flood in her house.
96 The methamphetamine found under the carpet in the kitchen was stored in a similar place to that which the appellant acknowledged she had stored her money, that is, under carpet pieces in her house. It was contained in a small clip seal bag. Nearby to that methamphetamine was a quantity of empty small clip seal bags inside a larger clip seal bag, wrapped in cling film, which was the manner in which the appellant stored her money found elsewhere in the house.
97 As the magistrate noted, the similarities between the methods and places of storage of the drugs and small clip seal bags, which are commonly used to store drugs, and the method and place of storage of the money, which the appellant admitted was hers, was strong circumstantial evidence against the appellant. The evidence was probative to prove that she possessed the drugs, as well as the money.
98 In light of the circumstantial evidence connecting the appellant to the money and drugs, the magistrate was not required to and did not err in failing to give weight to the evidence that other people had access to the appellant's home. That is, even accepting the evidence that other people had some access to the house, the evidence, taken as a whole, supported the magistrate's finding that the appellant possessed the drugs found in her house.
Ground of appeal 1(c) - appellant's evidence of Mr Cooper's last visit to her home
99 This ground of appeal relates to the appellant's evidence that she had been out and had arrived home to see Mr Cooper, her daughter's partner, coming out of her house. Her counsel invited the magistrate to conclude that it was a reasonable possibility that Mr Cooper could have put the drugs in her house without her knowledge. The magistrate found that the appellant's evidence about the timing of this visit to be 'unsatisfactory'. He did not rely on it.
100 In evidenceinchief the appellant gave the following evidence concerning the last occasion Mr Cooper had been at her home before the police searched it:
So how long prior to the police raid? That was maybe two - maybe three weeks, I think it might have been.
Maybe three weeks? Yes, maybe, that. Yes. It might have been before. I just don't know. I don't know how long Khanas (sic) was in jail before he wasn't in jail before that happened to me.
Okay? I couldn't tell you an exact time. I don't want to get things mixed up, but I know it was he was in jail in Bowen (sic) and got transferred to Perth. That's what Danielle told me, he got sent to Perth.
Yes? And a bit of time after about a week after that, I think, I got raided (ts 30 July 2014, 56).
Which days was this? That was on a Sunday, and he got arrested on a Monday morning, I think.
Sunday of what date? I couldn't tell you what date. I just couldn't. It just well, the police would know that day he got arrested, the Sunday before he got arrested.
Well, how soon before the police searched your premises this was after he had been put in jail. He got 15 months prison. I didn't see Khanas (sic) again after that date at my back gate, the door gate.
No, no, but the question I am asking Mrs Rundle you saw him coming out your back gate? No, the back door
Your back door? in the from the kitchen, yes.
How when at what time or date ? Yes.
months, weeks, whatever before ? It was the next
before the ? He got arrested.
Yes, before the raid on your place? That was a couple of a couple of months after I think or a month after. I'm not too sure. He was in jail.
...
Right. Now, that's all right. When how how long before? Well, I know it was it could have been a month after I got got raided. I just can't I don't take notes of dates and that, but it was after Khanas (sic) had gone. I didn't see Khanas (sic) again. After that date my kitchen I'm saying the kitchen door and the gate, that gate you go into the side of the house.
...
Now, Mrs Rundle, I will go back to my original question? Yes.
The day you saw him coming out ? Yes.
whether it's a side gate, kitchen, whatever? Yes.
You said you saw him coming out of a particular area in the house? Yes, I did, yes.
Now, when was that in reference to the time when the police raided your place and found these drugs? Well, I can't be honestly sure what I know it was it could have been a month after or a month and a half after.
After the raid? No, before the I saw him before the raid, and I didn't see him after that.
All right. So a month before the raid ? Yes.
that's when you saw him? Not a month, it was the next day, that same day. It wasn't I'm sorry, I am confused the way you're putting it.
Mrs Rundle, it's a fairly simple question. You saw him coming out of your out somewhere out of your house? Yes, that was the Sunday. I went to
HIS HONOUR: Sorry. I am just I am just going to stop you. What I suggest you do is just start again? Yes, I'm just
PROSECUTOR: Yes, I think so, sir.
HIS HONOUR: So let's start? Yes.
You've told us of an incident where you saw Karnis coming out of the kitchen door of your house? Yes, to that house gate where I let you in.
All right. Now, was that before or after the police raided your property? It was before.
Okay. And how long before they raided your place? I would say maybe a month, a month and a half. I don't know when he went to prison. I would go from there, you know, like, I don't know how long he was in Boulder prison or when he went to Perth. All Danielle said was Khanas (sic) has gone to Perth, and I didn't know anymore than that. I'm sorry I am just going from there, but it was well and truly after Khanas (sic) was in prison. He was in prison when I was getting raided (ts 113 116, 30 July 2014).
102 The magistrate had the benefit of hearing and seeing the appellant give evidence. In general, he rejected her evidence and gave valid reasons for doing so. There were numerous inconsistencies between what the appellant had told the police and what she said in evidence. There were also numerous portions of her evidence which were vague, inconsistent and/or stretched credulity. The above evidence concerning the last time Mr Cooper had been at her home, illustrated that conclusion. The magistrate was entitled to conclude that the appellant testified in an unsatisfactory manner as to when Mr Cooper had last visited her home.
Ground of appeal 1(d) - Mr Rundle's and Ms Gregory's evidence
103 It was a matter entirely for the magistrate to determine what weight he gave to the evidence of Ms Gregory and Mr Rundle about possible legitimate sources of the appellant's income.
104 The appellant alleges that the magistrate did not make any specific findings in relation to their evidence. This is not true. The magistrate recited the evidence and also found that Mr Rundle's evidence was largely based on what he had been told by his mother, that is, his evidence was hearsay. In respect of Ms Gregory, the magistrate found that she had limited firsthand knowledge and that her evidence carried little weight, presumably because it was hearsay and lacked details. These findings were open to the magistrate.
Ground of appeal 1(e) - appellant's conduct with the mannequin
105 In her evidence, the appellant agreed that she tried to walk up to the mannequin just before the police searched it. She testified that she wanted to show the police how the mannequin worked. In relation to that evidence, the magistrate said:
I reject that proposition as being unlikely in the course of a police raid (ts 41, 25 August 2014).
106 This ground is argumentative. It was for the magistrate to determine whether the appellant's explanation for walking up to the mannequin and wanting to turn it on for the police was credible or not. It was open to the magistrate to conclude in light of his assessment of the appellant's credibility and all of the evidence, that he did not believe that explanation. His disbelief of the appellant's evidence is not an appellable error.
Ground of appeal 1(f) - appellant's personal circumstances
107 The magistrate was aware that the appellant claimed to suffer from anxiety and depression as he referred to her evidence to this effect when he summarised the evidence. He also said that she had poor literacy and numeracy skills.
108 The magistrate made a specific finding that the lies that the appellant told to the police about the presence of money in her house could not be explained by stress. He said that this was in view of the repetitive nature of the lies and her explanation that the cash was going to be used 'today' to pay bills. The magistrate was entitled to come to this conclusion.
109 The heat of the day of the search could not have been a significant cause of the appellant's lies and inconsistencies during the police search as the appellant lied from the outset of the search about the presence, or lack thereof, of money in her house. The appellant's poor literacy skills do not appear to be of any relevance to explain why she lied to the police, either.
110 The appellant's claimed poor numeracy skills had to be balanced against the evidence that she had a large amount of money in her house and that she was capable of counting and storing it in lots of $350, $400 and larger amounts.
111 The appellant gave brief evidence about suffering from anxiety and depression but there was no medical evidence of the extent of either of these conditions. Thus, there was no requirement for the magistrate to give those matters any significant weight.
112 Further, anxiety at the time of the police search could cut both ways for the appellant. It could be a legitimate explanation for what would otherwise be an unsatisfactory demeanour, but it also could be the result of her knowing that she had a large amount of unlawfully obtained cash and some illicit drugs in her house. In the absence of further evidence the magistrate was not obliged to accept the first explanation if the evidence, considered as a whole, persuaded him that the appellant was guilty of the offences.
113 The appellant has not explained how her depression had any relevance to the matters to be determined by the magistrate.
Ground of appeal 1(g) - adequacy of findings of fact to support conclusions
114 Ground of appeal 1(g) appears to be incorrectly worded. I have interpreted the last phrase as asserting that it was not open to the magistrate to convict the appellant of these charges as a result of the findings of fact made by the magistrate.
115 A magistrate's duties in giving reasons for decisions are set out in the Magistrates Court Act 2004 (WA) s 31. Section 31 says that the court's reasons for judgment in a case need only identify the facts the court has accepted in coming to its decision and give reasons for doing so. The reasons need not canvass all the evidence given in the case and need not canvass all the factual issues arising in it.
116 The reasons must disclose adequately the intellectual process which has resulted in his findings: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226.
117 It has also been said on numerous occasions that an appeal court should not be overly critical of the reasons given by a magistrate in a busy court: Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 [30]; Gardner v Caporn [2005] WASCA 153. Further, the failure to refer to relevant matters by a magistrate does not necessarily give rise to an inference that the matter is not considered. 'In the absence of credible evidence to the contrary, it is to be assumed that the decisionmaker has complied with all relevant duties and taken all relevant matters into account.': Pickett v The State of Western Australia [2004] WASCA 291 [10].
118 The relevant statutory provision and the above authorities indicate that the failure of the magistrate to refer to every part of the evidence and explain why or why not it supported his findings of fact is not an appellable error.
119 In determining ground of appeal 1, I have set out why the magistrate's findings in relation to the unlawful possession of money charge were adequate to support his finding of guilt of that charge.
120 In relation to the drugs charges, his Honour set out his reasons which I have quoted at [71] above. In addition, his Honour gave reasons rejecting the appellant's evidence. The magistrate's reasons were adequate to support his ultimate findings that the appellant was guilty of both drug charges.
121 The magistrate's reasons were delivered orally and, therefore, were not a model of clarity. However, they discussed most of the evidence and gave reasons for whether the magistrate accepted or rejected key parts of the evidence. The magistrate made sufficient findings of fact and gave adequate reasons for his decision. His findings of fact and reasons supported the ultimate findings of guilt of all three charges.
122 However, even if I am wrong in that view, I am not required to set aside the convictions and I would not do so. The Criminal Appeals Act 2004 (WA) s 14(3) provides that the court is not required to set aside a magistrate's decision because the magistrate omitted to make any necessary findings of fact if the facts or evidence in substance support the decision.
123 The magistrate's rejection of the appellant's evidence and his decision that he could not, or was not prepared to, rely on the appellant's other witnesses, together with the other positive findings he made and the uncontroverted evidence, in substance, supported his decisions. Further, after my own examination of the testimony of the appellant and other defence witnesses, I am satisfied that his decisions to reject the defence evidence or not to place weight on it were open to the magistrate and were the right decisions.
124 After the appellant had completed giving her evidence, the unsigned statement of Ms Kinna was read into evidence, by consent. Ms Kinna's statement was to the effect that:
(1) about three months prior to the appellant's father's death 'in about 2002', he gave Ms Kinna 'a number of parcels' to give to the appellant;
(3) the appellant's father told Ms Kinna that the parcel contained 'about $40,000'; and
(4) Ms Kinna did not open the parcels before she gave them to the appellant.
125 The appellant also gave evidence that she had received a parcel of money from Ms Kinna from her father which she had put in a pencil case. She said she had not counted the money.
126 Prior to Ms Kinna's statement being read the magistrate was told that it would be read into evidence by consent. When a witness' statement is read into evidence by consent, it is usually the case that the opposing party does not dispute the truth of the direct evidence in the statement, but this is not inevitably the case. It is even less the case that reading in a statement by consent implies necessarily that the opposing party admits the truth of hearsay evidence in the statement.
127 It seems that the respondent did not dispute that Ms Kinna delivered a parcel from the appellant's father to the appellant in around 2002 but the respondent did dispute that Ms Kinna's statement could prove how much money was in the parcel.
128 The magistrate did not find that he did not accept that Ms Kinna delivered some money from the appellant's father to the appellant. The point he made in his reasons was that neither the evidence of the appellant or Ms Kinna could establish the amount of the inheritance, in any event.
129 The statement read into evidence specifically said that Ms Kinna had not counted the cash and her belief as to its amount was based entirely on hearsay. Given the hearsay nature of that part of her statement, it would have been an error by the magistrate to accept the statement of Ms Kinna as proof of the amount of the inheritance. Rather, the appellant's counsel should have been aware at the time the statement of Ms Kinna was tendered that it could not establish the amount of the inheritance.
130 The limited value of this part of Ms Kinna's statement was highlighted in the respondent's counsel's closing address, when he submitted that the evidence of Ms Kinna was hearsay. The magistrate raised with the prosecutor the fact that the respondent had consented to it being read in. The respondent's counsel said that it was a question of how much weight the magistrate would put on the evidence and said that the submission of the respondent was that, in effect, little weight could be put on it.
131 The issue of the inheritance was raised also in the appellant's counsel's closing submission. After the appellant's counsel submitted that the inheritance was $40,000, the magistrate said that his understanding of the evidence was that the appellant was not aware that it was $40,000 or any other amount because she never counted it. The appellant's counsel conceded that was the state of the evidence.
132 Thus, at the very latest, during closing submissions it must have been apparent to the appellant's counsel that Ms Kinna's evidence was not accepted by the prosecution and probably not by the magistrate as proof that the appellant had received an inheritance of $40,000. Despite this, no application was made to adjourn the trial and reopen the defence case so that Ms Kinna could be called. Further, contrary to the appellant's argument on appeal, the appellant had an opportunity then to 'put information and submissions' to the magistrate in support of Ms Kinna's evidence: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, 591 592.
133 I conclude that the appellant was on notice prior to the magistrate delivering his decision that the respondent did not accept Ms Kinna's evidence as proof of the amount of any inheritance. The appellant also was on notice that the magistrate's view was that the evidence did not support a finding that the appellant knew the amount of any inheritance. In these circumstances, in respect of ground of appeal 2(a), I conclude that the magistrate did not deny the appellant natural justice by not using Ms Kinna's evidence to prove the amount of any inheritance.
134 Neither did the magistrate refuse the appellant an adjournment to call Ms Kinna as a witness or deny the appellant an opportunity to adduce oral or further evidence from Ms Kinna. No application to adjourn the trial for that purpose was made. I also note that the appellant's counsel told me that he had not proofed Ms Kinna and is still not in a position to tell the court that Ms Kinna could give direct evidence of what was in the parcel she delivered to the appellant.
135 Thus, in respect of ground of appeal 2(b), there was no denial of natural justice or procedural fairness by the magistrate failing to allow the appellant to adduce further evidence from Ms Kinna.
136 For the above reasons, I am of the view that none of the grounds of appeal have reasonable prospects of success. I refuse leave to appeal and dismiss the appeal.
[1] I will refer to it as an inheritance throughout my reasons even though the evidence is to the effect that it may have been given to the appellant before her father's death.
(1999) 21 WAR 226
(1994) 49 FCR 576
(2003) 214 CLR 118
(1998) 197 CLR 250