Oldfield v Police[2000] QDC 205

APPELLATE JURISDICTION

JUDGE BOTTING

and

HERVEY BAY

DATE 25/05/2000

JUDGMENT

HIS HONOUR: This is the matter of an appeal of Oldfield and Murray. I heard argument in this matter yesterday and I then reserved my decision. In the meantime, I have completely read the whole of the transcript and perused the exhibits that were before His Worship - in the material on the Court file.

The appellant was charged that on 21 February 1997 at Bidwill, she possessed property that was reasonably suspected of being tainted, the property in question being a Ford Falcon sedan bearing the registration number 052-DMP and also included in the property was alleged to be a sum $560.

The charge, of course, is preferred pursuant to the provisions of section 92 of the Crimes Confiscation Act of 1989. That section provides that a person must not possess property that may reasonably be suspected of being tainted property.

Section 13 of the Act defines tainted property as being property which is subparagraph (a) used by a person in or in connection with the conviction of a serious offence or in subparagraph (c) derived by a person from the commission of the serious offence.

The trial before the learned Stipendiary Magistrate was conducted on the basis that the property in question was derived by the accused from the commission of a serious offence.

The section 92, as it appears to me, requires proof which must, of course, be proof beyond a reasonable doubt that the appellant possessed the property in question and secondly, that the property may be characterised as being property “that may reasonably be suspected of being tainted property”.

In this case, it seems to me, there has been no issue taken as to the first of those matters. Sofar as the second element of the offence is concerned, it requires, as Justice of Appeal Pincus pointed out in King and de Villiers, appeal 5904 of 1997 that the element requires “the Court to determine objectively whether it-----” and His Honour has emphasised the word “it”, “-----is satisfied beyond reasonable doubt that the property might reasonably be suspected of being tainted property”.

In this case, the learned counsel appearing for the respondent has quite properly and appropriately conceded that the learned Stipendiary Magistrate in this case has misdirected himself as to that element. In fact, His Worship does appear in the early part of his judgment to state the law correctly but in making his findings, it is clear that what he had found amounted to no more than that the respondent, that is Detective Murray, was suspicious that the property was tainted. Clearly, as is conceded, His Worship was in error in that regard.

That, of course, does not end the matter. As His Worship has fallen into error, it now seems to me or falls to me, it seems, to review the whole of the evidence to see whether the evidence is such that I can safely conclude that His Worship must have been persuaded, beyond a reasonable doubt, that the offence had been committed.

By evidence, of course I mean evidence which is properly admissible before a Court sitting in criminal jurisdiction. I have to say that in this particular trial as I read the transcript last night, I became concerned at what seemed to me to be the inordinate amount of evidence which, in my view, is clearly inadmissible but which was, nonetheless, led and in most cases not objected to.

Sometimes, of course, the fact that counsel does not object to evidence indicates either an agreement or an understanding with the Crown which often will be very usefully made to facilitate the flow of evidence and to eliminate the calling of witnesses to prove matters which are not seriously contested but I must say that in this case, if there were such agreement, it would have been better for that to have been on the record. I do note that the solicitor appearing for the appellant did, early in the piece, state that there had been or made certain admissions to facilitate proof and that, of course, is a proper way of doing things but nonetheless, it does seem to me that at the end of the day, there were large pieces of evidence which are, clearly in my view, inadmissible and which went onto the record unobjected to.

It is the duty, as I understand it, of Judges and of course in that term, I include, of course, Magistrates, to ensure that if people are to be convicted of serious criminal offences that they are convicted on evidence which is properly admissible against them. That is the case, it seems to me, even if counsel appearing for an accused does not object to evidence unless the Judge or Magistrate is confident that the counsel is consciously allowing inadmissible evidence to go before the jury. The Judge, it seems to me, has a duty at least to inquire, and that did not happen in this case.

There was extensive evidence given by Detective Murray as to his suspicions about the property and those suspicions were based on, it seems to me, his previous dealings, personal dealings with the accused and information which he had gleaned from other police officers and from members of the public. Almost all of it, it seems to me, was clearly inadmissible. It was worse than that. It was, of course, highly prejudicial to the accused or I should say the appellant.

I find it impossible to believe that the reception of that evidence could have had anything other than the most damning effect upon the credibility of the appellant.

The evidence of what occurred at the time that the appellant's home was searched consisted primarily of the finding of a parcel of white powder which was found in the boot of the car that is in question. There was also an envelope in the glove box. Behind the dressing table, there was found to be a plastic bag containing white substance and under the bed there was a clipseal bag. That was under a bed in the defendant's bedroom or what was said to be the defendant's bedroom.

There were also seized a book referred to as the Merc Index, a catalogue of scientific glassware and two handbags containing syringes. A sum of $560.55 was found in a dressing gown said to be that of the appellant's. Indeed, Detective Murray himself did not find that. He was told by another police officer, Kentwell, that she had found that money.

There was a flat adjacent to the house referred to as a granny flat and in that flat were found a number of chemicals, hoses, pumps and other items and some of these items were said to be, by Detective Murray, “the ingredients and the equipment required to produce methyl amphetamine”. There were traces of that substance found on fan covers, exhaust fans and bathtubs. Detective Murray said that he knew that the appellant did not have an occupation. Again, in my view, clearly inadmissible in evidence.

The evidence was, before the Magistrate, that the granny flat, as it was referred to, was occupied by one Steve Wynn who was also said to be the appellant's boyfriend or de facto.

It can be observed from what I have said that the items actually found in the back part of the premises which might be thought to have been regularly used by the appellant, amounted to the book, the catalogue, the two handbags, the small plastic bag and the clipseal bag and the cash, of course, in what was said to be her dressing gown.

The parcel containing white powder, as I have already mentioned, was found in the boot of the car. The white powder and other items were, of course, analysed. I have already indicated that traces of methyl amphetamine were found on the fan and various other items in the granny flat.

The parcel of white powder, although containing quite a lot of white powder, was, in fact, on analysis, found to be very low grade, if I can call it that or refer to it as such and in fact, the actual amount of illicit substance was comparatively small.

The other witness called by the prosecution was a Sergeant Duell who has accountancy qualifications. He obviously had done a lot of work analysing various books which he was given which he identified inter alia as being bank books of the appellant. He too, wandered over areas which, in my view, were simply not relevant and again quite prejudicial before the Court. He referred to properties which had been purchased, searches and matters which he had ascertained back in 1990 and in the next breath would concede that he did not commence his investigations or the starting point for his investigations was several years later. It is difficult to know what was thought to be the relevance of that type of evidence before His Worship.

Essentially the evidence of Mr Duell was that from his analysis of the books given to him, there was an unsourced amount between 1 January 1994 and 28 February 1997 of a little over $48,000. By unsourced, he meant that he had not been able to ascertain where the funds might have been derived from. He seems to have assumed that he had all the appellant's financial records, an assumption that I, for one, would not be prepared to make, not without, of course, much more evidence.

As I said, it seems to me that my role at this stage, having found that His Worship fell into error in instructing himself incorrectly as to the proper test to be applied, I must examine the evidence and to see whether, at the end of the day, the learned Stipendiary Magistrate must have been satisfied beyond a reasonable doubt that the property might reasonably be suspected of being tainted property. It seems to me that the evidence before His Worship simply could not meet that test.

Counsel for the Crown has submitted that there is an alternative basis upon which the conviction might be supported. He has referred me to the definition of tainted property and has pointed out particularly the provision in subparagraph A which defines such property as being property which is used by a person in or in connection with a commission of a serious offence. His argument is the property was found in the boot of the car and the car can therefore be said to be property used in or in connection with the commission of the serious offence of possession of the illicit drug.

There may be, with respect, superficial attractiveness to that argument but it has very troubling consequences. There is evidence, for example, as I have already mentioned that the drug was also found under the bed in the appellant's bedroom. No doubt, it could be equally argued that the bedroom or the house itself was used for the purpose of the possession of the drug and therefore becomes tainted property. I would think that would be an extraordinary result.

I think the answer is to be found in the decision of Mr Justice Carter in re An Application pursuant to the Drugs Misuse Act of 1986 which is reported in [1988] 2 QdR 506, 512 in which he held there must be a substantial connection between the property and the commission of the serious offence. That seems to me to be a proper, if I may say with respect to his Honour, a proper and appropriate way of reading the section and in my view, so understood, it cannot be said that the property was tainted in the way that counsel to the respondent has submitted.

I should say that I have gained some considerable assistance from the judgment of my colleague, Judge White in his considered reasons in Pecotich v. Thomson, a decision handed down by his Honour on 8 April 1993 in which, in particular, he canvasses the question of the inadmissibility of evidence relating to the investigating officer's belief.

Like him, I would have preferred to have had the power simply to remit the matter back to the Magistrates Court so that the matter might be reheard. I am conscious of the fact that the learned Stipendiary Magistrate, having heard the appellant and the witness, essentially disbelieved her, disbelieved those witnesses and made significant findings of credit against her. That has troubled me because it has concerned me that his finding that she had told lies might well add to the suspicion that the property was tainted.

The problem I have there is that he had heard, as I have already indicated, so much highly prejudicial evidence in respect of the appellant that it seems to me that whilst he may well have formed the same view of her credibility had he not heard that evidence, I, myself cannot feel confident that that must have been the result, notwithstanding, I might say, that the explanation she has given does seem to be somewhat extraordinary.

Like his Honour, Judge White, I express regret that I cannot send the matter back to the Magistrates Court. It seems anomalous to me that that power does not exist in this Court and must often create a set of circumstances or situations where people perhaps somewhat fortuitously avoid the proper consequences of their actions but the law is quite clear that I do not have that power.

It seems to me I must do, as did his Honour, namely allow the appeal, set aside the conviction and sentence.

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HIS HONOUR: It seems to me that the clear evidence before His Worship was that the vehicle had been bought from Tarrants, invariably it is referred as Terrence's in the transcript. I mean the whole Crown case was that the vehicle had been purchased with cash provided by the appellant so it would be surprising if there were any other claim.

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HIS HONOUR: I am of the mind to set aside also the forfeiture order. If you like, I will stand that matter down and if you wish to argue the matter further you can do so.

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HIS HONOUR: Just so it is clear, I will set aside also the forfeiture order.

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HIS HONOUR: I will allow the appeal. I set aside the conviction and sentence. I set aside the forfeiture order.

I order that the respondent pay the appellant's costs of the appeal to be agreed or if no agreement is reached before 30 June 2000, to be assessed.