Edited edition of reasons for judgment delivered orally

Criminal Law - Particular offences - Property offences - Receiving and possession of property stolen or reasonably suspected of being stolen or unlawfully obtained - Possession of property stolen or suspected to be stolen or unlawfully obtained - Suspected or reasonably suspected or supposed to have been stolen or unlawfully obtained - Basis and reasonableness of suspicion - "Reasonably supposed" stolen or unlawfully obtained - Partial acknowledgement of stolen goods.

Balmer v Southern [1956] Tas SR 6; Burnett v Brown (1929) 24 Tas LR 23; Director of Public Prosecutions v Barel (Unreported, Supreme Court of Victoria, 16 November 1992); Edens v Cleary [1975] 1 NSWLR 278; Hughes v Dempsey (1915) 17 WALR 186; Mackey v Gangell [1952] Tas SR 31; O'Garey v King [1972] Tas SR 136; Samoukovic v Brown A56/1993; Weston v Smith [1963] TAS SR 27, followed.

Dimitrovski v Ryan (1998) 72 ALJR 1172, referred to.

Police Offences Act 1935 (Tas), s39.

Judgment Number: [2001] TASSC 123

1 The applicant appeals against his conviction and sentence on a charge of being found in possession of property reasonably supposed to have been stolen or unlawfully obtained in contravention of the Police Offences Act 1935 ("the Act"), s39. The particulars of the charge detail 15 items or groups of items of property found in the applicant's residence on 4 May 1999. The applicant does not challenge the finding that he was in possession of the property.

2 The core ground of appeal is that the learned magistrate erred in being satisfied that the police officer responsible for charging the applicant, Sgt Frederick Rhodes, had a reasonable supposition that each of the items of property had been stolen or unlawfully obtained. Whilst Sgt Rhodes gave evidence averring that he held such a view, that is not of itself sufficient to satisfy this element of the offence. It must be established that Sgt Rhodes' supposition that the property was stolen or unlawfully obtained was reasonable; O'Garey v King [1972] Tas SR 136 at 138 and Samoukovic v Brown A56/1993 at 4. For a supposition to be reasonable, it must amount to more than mere imagination or conjecture, but may be something less than belief; Hughes v Dempsey (1915) 17 WALR 186 at 187, Mackey v Gangell [1952] Tas SR 31 at 42 and Director of Public Prosecutions v Barel (unreported, Supreme Court of Victoria, 16 November 1992, Brooking J). In Burnett v Brown (1929) 24 Tas LR 23, Clark J, at 34, said with respect to the Police Act 1905, s16, an earlier Tasmanian enactment similar to the Act, s89:

"The words 'suspicion' and 'suspect' convey the idea of doubt and mistrust as much as belief, a doubting and mistrusting inclination to believe. The inclination may exist in various degrees according to the cogency of the evidence, but the idea of doubt and mistrust is always present.

The word 'supposed' when used in the sense in which it is used in the enactment I am considering I think expresses something more than a doubting or mistrusting inclination to believe, but yet not belief as of an unquestionable fact -while it expresses the idea of belief it does not exclude the idea of possibility that belief may be erroneous."

3 The reasonableness of the finder's supposition must be established by clear evidence of the facts upon which it is founded; Weston v Smith [1963] Tas SR 27 and Samoukovic v Brown (supra) at 5. A number of Tasmanian decisions have held that the reasonable grounds for supposition must be concomitant with the finding of possession, Burnett v Brown (supra) at 25, Mackey v Gangell (supra) at 34, Weston v Smith (supra) at 32 and Samoukovic v Brown (supra) at 6. In an appropriate case, this proposition will need to be reviewed in the light of the view expressed by Gaudron, Gummow, and Hayne JJ in Dimitrovski v Ryan (1998) 72 ALJR 1172, that the preferable construction of the Police Act 1892 (WA), s69, is that the words "may be reasonably suspected" required reasonable grounds of suspicion when the accused is charged. That section is analogous to the Act, s39. This is not the occasion to revisit that proposition, as there is no variation in the basis for Sgt Rhodes' supposition between the period when he found the applicant in possession of the property and the time when the applicant was charged.

4 I turn to the evidence before the learned magistrate which bears on the reasonableness of Sgt Rhodes' supposition that each item of property was stolen. It would have been sufficient to sustain a conviction for the learned magistrate to have been satisfied of all of the elements of the offence in relation to one or more of the items of property; Edens v Cleary [1975] 1 NSWLR 278. As it happens, the learned magistrate found the charge established in relation to all items of property. Sgt Rhodes gave evidence that in the company of four police officers, he attended the applicant's residence to search for stolen property. Sgt Rhodes had been told by a colleague, Det Avery, one of the officers who accompanied Sgt Rhodes, that he, Det Avery, had been advised by an informant that the informant had seen a stolen Tekken play station at the applicant's residence. More generally, Sgt Rhodes said that he anticipated finding stolen property at the applicant's residence as at the time Sgt Rhodes was in charge of the Devonport Drug Bureau which had received a lot of information that the applicant was supplying drugs in return for stolen property. Whilst it is clear that Sgt Rhodes' supposition must attach to the property which was found and not to the person in possession of the property, information of this nature about the character of the person in possession of the property is a factor to be taken into account in deciding whether reasonable suspicion attaches to the property; Weston v Smith (supra) at 37. In the course of his evidence, Sgt Rhodes referred to a number of matters which might be said to provide support for his supposition. I have in mind matters such as his evidence that the property found did not match the character of the applicant, that the property was not stored in a secure manner and that there had been reports of property similar to that which was found being stolen. I accept the submission of the applicant's counsel, Mr Richardson, that in the circumstances of this case, generalised evidence of this nature provides virtually no support for a supposition that specific items of property were stolen.

5 Throughout the search of the applicant's residence, Sgt Rhodes was accompanied by the applicant. As items were located, the applicant commented to Sgt Rhodes on the items providence. What the applicant said about the items is a crucial part of the material on which Sgt Rhodes' relied in forming his supposition that the property was stolen and it is relevant to the Court's assessment of the reasonableness of that supposition; Burnett v Brown (supra) at 26, Balmer v Southern [1956] Tas SR 6 at 16 and Weston v Smith (supra) at 35.

6 Sgt Rhodes made a contemporaneous written record of what was said by the applicant during the search. That record was put into evidence and its accuracy was not challenged by the applicant. In the course of the search, the applicant is recorded as saying with respect to a Cannon camera, Ibanez guitar and laptop computer, that they "are probably hot - so take them". This was a clear acknowledgement by the applicant that these items had probably been stolen and, in my view, it was a reasonable basis for Sgt Rhodes' supposition to that effect. When asked about a telescope the applicant initially named a supplier who, on the basis of what the applicant subsequently said, could not have sold the telescope to him. The applicant is then recorded as saying that he had named a false supplier as "thought it might be hot". He went on to say that he was not sure where he got the telescope and that it could have been from Phil Griffiths, a person he had earlier named as the source of two Samurai swords which had attracted the attention of the searching officers. As the applicant had acknowledged that one of the items he thought he obtained from Mr Griffiths was hot, it is reasonable to suspect that the two Samurai swords, which he received from the same source, were also stolen. Nothing said by the applicant in relation to how he obtained the swords from Mr Griffiths provides a basis for negating that suspicion.

7 In the course of the search, two Stihl chainsaws and a Kanko jackhammer were located in a shed. The applicant was unable to provide any information about one of the chainsaws and his responses in relation to the jackhammer indicated that an associate had delivered it to him when it was not taken by police who searched the associate's residence. In response to the assertion that these three items were stolen, the applicant is recorded as saying: "Yeah, they were using me - I am a good bloke really - but some bastard use me". By this response the applicant acknowledged that those who provided him with these items may have used him by providing him with stolen property.

8 The applicant was asked about property he had received from a person named Dion Heather, who the applicant acknowledged had been to his home the previous night prior. The applicant is recorded as having replied: "Nothing, I wouldn't take nothing off that bastard. He is bad news." When pressed further the applicant acknowledged that he had paid Mr Heather $60 for an old English style baton, as Mr Heather was broke and needed the money. Further property which attracted the attention of the officers during the search included a Tosca bag containing eight pairs of new Levis jeans. Security tags were attached to four pairs of the jeans. The jeans were of various sizes. To the observation of Sgt Rhodes, they would not have fitted the applicant or his children, although some of them may have fitted the applicant's partner. In the absence of any explanation for the security tags remaining on the jeans there was clearly reason to suspect that they were stolen.

9 The information to which I have referred shows that during the course of the search some support was obtained for Sgt Rhodes' suspicion that the applicant had been dealing in stolen property insofar as the applicant made acknowledgements to the effect that the items to which I have referred, with the exception of the jeans, were either hot or that the source from whom they had been obtained was of dubious integrity. As to the jeans, the circumstances in which they were discovered plainly suggest that they had been stolen.

10 I am not persuaded that the learned magistrate erred in finding that Sgt Rhodes' supposition that the items to which I have referred were stolen or unlawfully obtained, was reasonable. The learned magistrate's finding also extended to two guitars besides the Ibanez guitar to which I have referred, one Tekken play station game and a portable spray unit. With reference to these items, the applicant said nothing that could properly be construed as an acknowledgement that they had been stolen, nor was there anything about them from which it could be inferred that they were stolen. Whilst what the applicant is recorded as saying in relation to the means by which he came into possession of the play station game and the spray unit lacked specificity and is not convincing, that is insufficient to found a reasonable supposition that the items were stolen even when coupled with the legitimate reasons that Sgt Rhodes had for supposing that the applicant was dealing in stolen property.

11 The appeal is allowed insofar as I have determined that the learned magistrate erred in finding that there were reasonable grounds for the supposition that the four items to which I have referred were stolen or unlawfully obtained. The conviction will be varied to reflect this finding by deleting from the particulars of the charge one Les Paul guitar, one studio electric guitar, one Tekken play station game and one portable spray unit.