What is unlawfully in possession of property? (Goods in Custody)

s 527C(1)of the Crimes Act 1900 is comprised of four different offences with four different elements as follows:

  1. a person that has any thing in his or her custody,
  2. a person that has any thing in the custody of another person,
  3. a person that has anything in or on premises (whether belonging to or occupied by that person), or whether that thing is there for personal use or for another, or
  4. a person that gives custody of any thing to a person who is not lawfully entitled to possession of the thing.

Custody of an item means that an item was on the accused at the time of their arrest.  In law, this is defined as the ‘immediate de facto control or charge of the article in question.’  Ex parte McPherson (1933) 50 WN (NSW) 25; R v English (1989) 17 NSWLR 149 .

Police do NOT need to prove that an item has been stolen or unlawfully obtained, or even that an accused person knew that an item was stolen. Police need only show, beyond a reasonable doubt, that a suspicion was reasonably held.

Reasonable suspicion has been defined in law as ‘less than a reasonable belief but more than a possibility.’ R v Rondo (2001) 126 A Crim R 562 at [53].

A court will first consider whether a reasonable person would reasonably suspect that items were stolen or unlawfully obtained.

If the court accepts beyond reasonable doubt that police held a reasonable suspicion, then an accused then bears the onus of convincing the court, on the balance of probabilities, that there are no reasonable grounds to suspect that items were unlawfully obtained.

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