PERSONS UNLAWFULLY IN POSSESSION OF PROPERTY21-Jul-2010 Law Article by: Geoff Harrison | Sydney Criminal Barrister | Sydney Criminal Lawyer | Published 21/7/2010
This is a summary offence (see below) that is relatively easy for the prosecution to establish - as the prosecution are only required to prove beyond a reasonable doubt that the goods are reasonably suspected of being stolen or otherwise unlawfully obtained. The gravamen of this offence is as stated, one against possessing suspicious goods – the section also attempts to deal with scenarios where persons have passed possession of the goods to other persons or placed goods in deferent premises however, where the person still maintains possession/control over the goods or at least has defacto possession of the good.
Arguably the most common charge relating to ‘goods in custody’ is under s527C(1)(a) or ‘personal custody’ of the goods. A person cannot be convicted under s527C(1)(a) unless the ‘goods’ are actually in the person’s possession at the time of apprehension.
The above point is illustrated in R v English  17 NSWLR 149 where His Honour, Gleeson CJ inter alia referred to Street CJ in R v Abbrederis  1 NSWLR 530 at 538:
“The creation of an offence conditioned upon the possession of property as to the origin of which suspicion attaches has a long history in summary offences legislation…The general pattern of such legislation is to provide that a person having possession of goods he will be convicted. An early Australian case to which reference is frequently made as authorative is Brown v Schiffman  VLR 133…It was held that the purpose of the legislation was to deal with person caught in flagrante delicto and thus that it was necessary that the suspicion should exist at the time when the person is in possession of the property”.
Street CJ went on to observe that the approach that the relevant time for determining whether the suspicion and the reasonable grounds for such suspicion existed was the time when the person was in possession of the property (which, in the context set by his Honour, would presumably also have been the time of apprehension)…
This section has a long history and the law has changed in one respect from the abovementioned quote - the court is to now assess whether any suspicion arises in relation to the ‘goods’ at the time of hearing (Ex parte Patmoy; Re jack (1944) 44 SR (NSW) 351; 61 WN 228; Cleary v Hammond  1 NSWLR 111). It is also the case that the suspicion must attach to the goods and not the person: R v Madden (1995) 85 A Crim R 367.
A statutory defence is available under s527C(2) of the section which must be raised to an evidentiary onus ie. on the balance of probabilities - that the person had no reasonable grounds for suspecting that the thing referred to in the charge was stolen or otherwise unlawfully obtained.
CRIMES ACT 1900 - SECT 527C
Persons unlawfully in possession of property
(1) Any person who:
(a) has any thing in his or her custody,
(b) has any thing in the custody of another person,
(c) has any thing in or on premises, whether belonging to or occupied by himself or herself or not, or whether that thing is there for his or her own use or the use of another,
(d) gives custody of any thing to a person who is not lawfully entitled to possession of the thing, which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, is liable on conviction before the Local Court:
(a) if the thing is a motor vehicle or a motor vehicle part, or a vessel or a vessel part, to imprisonment for 1 year, or to a fine of 10 penalty units, or both,
(b) in the case of any other thing, to imprisonment for 6 months, or to a fine of 5 penalty units, or both.
(1A) A prosecution for an offence under subsection (1) involving the giving of custody of a motor vehicle to a person who is not lawfully entitled to possession of the motor vehicle may be commenced at any time within 2 years after the date of commission of the offence.
(2) It is a sufficient defence to a prosecution for an offence under subsection (1) if the defendant satisfies the court that he or she had no reasonable grounds for suspecting that the thing referred to in the charge was stolen or otherwise unlawfully obtained.
(3) In this section:
"motor vehicle" has the same meaning as it has in Division 5A of Part 4.
"premises" includes any structure, building, vehicle, vessel or place, whether built on or not, and any part of any such structure, building, vehicle, vessel or place.
"vessel" means a vessel within the meaning of the Marine Safety Act 1998.