High Court of Australia|1919-07-01|Before: Rich JJ

them ; and if an amendment of the Statute should be in contem- _P&rvy

plation, it might be well to add to the form of ballot-paper short 919,

explanations as to the effect of each resolution such as are con- - ~ Warre

Appl

wR ce Oran Sen,

eben Relges By am ieee (30085, Ramage Prosecutions R, (AR 457 'Miers (1987) adie aay EO tey sae Bein FET Gee . (HIGH COURT OF AUSTRALIA.} MOORS . : ' i i, ' 2 ig . | APPELLANT ; Derenpant, AND _ BURKE : i ; : 4 jee . Responpent. InForMANT,

Criminal Law - Possession of property suspected of being stolen - " Actual possession" H.C. ov A.

Physical control of goods - Exclusive right to obtain manual possession - 1919 Police Offences Act 1915 (Vict.) (No. 2708), sec. 40. pen

rane ; ' MELBourye, Sec. 40 of the Police Offences Act 1915 (Viet.) provides that "(1) Any june 16, 19,

person having in his actual possession or conveying in any manner any personal © ___ property whatsoever suspected of being stolen or unlawfully obtained may be Tsaacs, arrested either with or without warrant and brought before a Court of Petty and Rich JJ. Sessions, or may be summoned to appear before a Court of Petty Sessions.

(2) If such person does not in the opinion of the Court give a satisfactory

account as to how he came by such property he shall be liable to be imprisoned

for a term of not more than twelve months. (3) The said property if proved

to be or to have been in the actual possession of such person whether in a

building or otherwise, and whether or not the possession thereof had been

parted with by him before being brought before the said Court, shall for the

purposes of this section be deemed to be in his actual possession."

_ Held, that a person has not "actual possession" of property, within the meaning of the section, unless he has the complete present personal physical Vola XXVI, 20

control of the property, to the exclusion of others who are not acting in concert with him, either by having the property in his present manual custody or | having it where he alone, t6 the exclusion of such others, has the right or power to place his hands onit, and so to have manual custody when he wi

Decision of the Supreme Court of Victoria: Burke v. Moors, (1919) V. 138; 40 A.L.T., 143, reversed. :

At the Court of Petty Sessions at Melbourne an information heard whereby James Burke charged that Adrian Moors did on October 1918 "have in his actual possession certain pe property . . . suspected of having been stolen" contrary to Police Offences Act 1915 (Vict.). At the hearing the information y amended by substituting the words " unlawfully obtained " for word "stolen." Evidence was given to the effect (so far as is material) that the defendant was a Customs officer; that at material time the property in question, which included twelve skeins of wool, was found by the informant in a locker, in a shed on Melbourne wharfs which was under the control of the Customs, locker having been opened by the defendant at the informant' request ; that the defendant had access as of right to and used locker, and that at least one other Customs officer had access as of right to it ; and that the defendant had put the wool into the locker at an earlier date than that on which the informant found it there.

The defendant, having been convicted, obtained an order nisi to review the conviction on the ground (inter alia) that the property ¥ not in his actual possession. The Full Court of the Supreme Court discharged the order nisi: Burke v. Moors (1). '

From that decision the defendant now, by special leave, appealed to the High Court.

T. C. Brennan (with him R. G. Menzies), for the appellant. The words "actual possession" in sec. 40 of the Police Offences Act 1915 mean manual possession, and should not be construed as including constructive possession, or as applying to a case where the property is out of the manual possession of the defen- dant but is under his control. In Tatchell' v. Lovett (2) the

Q) (1919) VLR, 138; 40 ALT, (2) (1908) V.L.R., 645; 30 ALT. 143. 88.

origin of the section is found in the English Act 2 & 3 Vict. e. 71, sec. 24. In Hadley v. Perks (1) it was held that that sec- tion must be read with sec. 66 of 2 & 3 Vict. c. 47, which author- ized the arrest and detention of a person " having or conveying " goods suspected of being stolen, and therefore that the word " pos- session" should be interpreted ejusdem generis with "having or conveying," that is, as referring to the physical possession of goods in a public street. The provisions of those two sections of the English Acts were enacted in New South Wales in practically _ identical language by 17 Vict. No. 31, sec. 19, and 19 Vict. No. 24, sec. 1, and in In re Keyes (2) and In re Frith (3) the decision in _ Hadley y. Perks was followed. The provisions of sec. 24 of 2 & ' 3 Vict. c. 71 were then re-enacted in the Police Offences Act 1901 _ (N.S.W.), sec. 27. In Victoria the provisions of the latter Act were

enacted in sec. 10 of the Police Offences Act 1907 (Vict.), but with the addition of provisions now contained in sub-sec. 3 of sec. 40 of the Act of 1915. Under the Act of 1907 Tatchell v. Lovett (4) was decided, and then by sec, 40 of the Police Offences Act 1912 the words " actual possession " were substituted for the word " posses- sion." That alteration merely emphasized the decision in Tatchell _¥. Lovett. Sub-sec. 3 of sec. 40 does not give any right to go ~ into a house, but merely authorizes an arrest to be made in a house, which apart from the sub-section would, under the English' and _ New South Wales decisions, have been unlawful.

Lewers, for the respondent. The words "actual possession" _ are satisfied if a man has effective control of property, as, for ie i." if he puts a thing in such a position that he can get

it into his hands whenever he wishes (Pollock and Wright on Possession in the Common Law, pp. 12, 13, 27, 28, 63, 65, 93, M7, 148; Encyclopaedia of the Laws of England, 2nd ed., vol. x1., tit, "Possession."), There is no reason for limiting the meaning a the word "possession" in sec. 40 such as there was in the

8 LR.1Q.?., 444. (4) (1908) V.LR., 645; 30 ALT, ) 5 N.S.W.LR. (L.), 359: 88. 8) TNS. L.), 421.

words were interpreted as meaning actual physical control. 'The H- C. oF A.

English and New South Wales Acts; for the section when o ally enacted in Victoria was complete in itself, and was in qi Act. The possession need not be exclusive. It would be sufficien that for all practical purposes the defendant had the exclus occupation of the locker, and so had the effective control of the wool and that is what the evidence shows.

The judgment of the Court, which was read by Isaacs J., was as follows : -

The question we have to consider is whether the wool was in "actual possession" of Moors within the meaning of the Police Offences Act 1915. The meaning given to the phrase in the judgment

under appeal is simply "possession in fact as distinguished from

possession in law." The expression "actual possession" is tal to be a definite accepted phrase in the law, and, when found in th section, is assumed to bear its technical meaning. No doubt techni expressions must receive their technical meaning unless the contrary intention appears. But is " actual possession " a technical expres- sion? Passages from Pollock and Wright on Possession in the Common Law were referred to. All except one, however, relate to" the portion of the work relating to civil matters, and the one refer- ence at p. 148 which relates to criminal matters draws a distinction between "actual possession " and the " right to possession," which does not determine this case. But it is observable that after Sir Frederick Pollock deals with the ambiguity of "constructive - possession " he says, at p. 27 : - 'Actual possession' as opposed to. "constructive possession ' is in the same way an ambiguous term. Itis most commonly used to signify physical control, with or without pos- session in law." A foot-note refers to a decision in which it was held in a Statute to include purely legal possession. And at p. 28 the learned -

writer states : "' The whole terminology of the subject, however, is still

strongly warned that careful attention must in every case be paid to the context." It cannot, we think, be taken on the authority of Sir Frederick Pollock that the term " actual possession" has a definite legal signification that cannot be departed from when used 'in connection with a drastic and novel criminal enactment.

But, further, if "de facto possession" is to be here used simply inthe sense of " actual possession " as contrasted with " constructive possession" as these terms are understood with respect to real _ property, we must also bear in mind that Pollock, on p. 58, also states : _ "A servant in charge of his master's property . . . generally has not possession." If he has not " possession," he has not either "actual "' or " constructive " possession. And if a servant is to be

excluded from the operation of the section on this ground - assuming ~ Pollock's real property definitions are the guide - and the master _ ig by the same standard to be arrested because by the technical expression he is the person having in law " actual possession," a most astonishing and unexpected result would be produced. As Sir James Stephen says in his Digest of the Criminal Law, p. 243, "A movable thing is in the possession of . . . the master of any servant who has the custody of it for him, and from whom he can take it at pleasure." In New Trinidad ns Lake Asphalt Co, v. Attorney-General (1) the Privy Council say that in a deed the words "lands which now are or at any time shall come into the possession of Her Majesty " mean "land in the actual possession of the Crown or its officers." As the Crown or, indeed, any corporation can only possess land in that sense by servants or officers, it follows that unless in such case the master is in "actual possession " neither the Crown nor any cor- poration could ever be in actual possession of anything. It is evident that the discrimen for this enactment is not to be found merely by arbitrarily separating possession into two classes "actual" and "constructive," and then assuming a fixed and _ invariable meaning to each term.

When, however, we come to the part of the work of Pollock and ila which was written by the late Mr. Justice Wright, dealing

loose and unsettled in the books, and the reader cannot be too HI. ©. or A.

with Crime - which is cognate to our present inquiry - we find s

expressions that help us to ascertain the essentials of possession At pp. 118 and 119 the learned author says : - ' The word * poss sion' is used in relation to movable things in three different sens Firstly, it is used to signify mere physical possession . . . which is rather a state of facts than a legal notion. The law does not define - modes or events in which it may commence or cease. It may perhaps be generally described by stating that when a person is in such a relation to a thing that, (1) so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and. (2) so far as regards other persons, the thing is under the protectio of his personal presence, or in or on a house or land occupied by him, or in some receptacle belonging to him and under his control, he is in physical possession of the thing." The division of the parts and the 3 italics are ours. The receptacle belonging to him and under his -

control implies that it belongs to no one else and is subject to no other person's independent control. This is, if necessary, made still more clear by the passage at p. 129: "No phrase is more usual for describing the ordinary test of possession than the ques- tion - had he the separate undivided and exclusive control of the thing'??" :

The requisite of exclusiveness is insisted on by other writers of authority. The article in the Uncyclopedia of the Laws of England, 2nd ; ed., vol. x1., quoted in the judgment of the learned Chief Justice (1), - is, at p. 320, most insistent as to exclusiveness. Among other obser- vations is this : "The determining factors in legal possession are, then, the exercise of exclusive physical control, and the character in which this control is exercised." Sir James Stephen in his Digest of Criminal : Law, 5th ed., p. 243, observes : - '* A movable thing is in the posses- sion of the husband of any woman, or the master of any servant, who has the custody of it for him, and from whom he can take it at 4 pleasure. The word 'servant' here includes any person acting as a servant for any particular purpose or occasion. The word - "custody ' means such a relation towards the thing as would con- - stitute possession if the person having custody had it on his own -

account." Judicial opinion of the highest rank supports this. In _ (1) (1919) VLR, at p. 145; 40 ALT, at p. 146. :

Charlesworth v. Mills (1) Lord Halsbury L.C., speaking of a sheriffs H.C. or A.

possession, says: "I never understood that the possession of the sheriff was other than physical and actual possession." He says that does not mean that the man has at every moment in his posses- sion every article in the house. Some are incapable of being " grasped by the hand, if that is what is meant by taking physical possession." Then says the Lord Chancellor : - ''I find that there was a man in the house for the purpose of preventing any other person interfering with or removing or taking away any of the property in question; and it is not denied that if the assignor or any one on his behalf had attempted to remove any of the articles which were in the house at the time when this man was in possession on behalf of Mr. Charles- worth, he would have been immediately stopped. Therefore, I should have thought that this possession was just as much a physical and actual possession as it is possible for any one man to have in articles which are distributed all over a house."

Possession is proved by various acts varying with the nature of the subject matter. But exclusiveness is essential. That, of course, does not mean that several persons may not in concert have and exercise that exclusive possession as against the rest of the world. As to anything further, it is evident that the phrase "actual pos- session" not being a definite technical 'expression, we have to interpret it by other standards. And here what was said in The Lion (2), quoting Abbott C.J. in R. v. Hall (3), becomes impor- tant. Lord Romilly said: '"' The meaning of particular words in an Act of Parliament . . . 'is to.be found not so much in a strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which they are used.'"" The " subject or occasion " here is a new crime introduced into the code, the provision of the enactment being very drastic and summary. The adminis- tration of the enactment is given in the first place to justices, who usually are business men, not trained lawyers, and who, it cannot be presumed, are familiar with the delicate and various shadings that sometimes differentiate actual from constructive possession in relation to real property.

(1) (1892) A.C., 231, at p. 237. (2) LR. 2 P.C., 525, at p. 530. (3) 1B. & C., 123, at p. 136.

The enactment is to be construed according to its language, 7 Parliament is supposed to have intended those concerned in obe vit it and in carrying it out and administering it as a branch of criminal law, and for the prevention of crime, would naturally understand it. Its history is not unimportant. E

The English Acts were passed in 1839, and in 1853 and 1855 New South Wales copied them with some variation of language. In 1866 Hadley v. Perks (1) decided that the Imperia legislation did not apply to a case where the goods were on

a person's premises. The reason given was that on the true construction of the two Acts it was intended only that the power in question should be exercised where the accused person was found in the street. In 1884, in In re Keyes (2), the Supreme Court of New South Wales held that the words " any thing " which occurred in both the English and New South Wales enactments di not include cattle, but only things that could, so to speak, be grasped manually and carried. In 1896, in In re Frith (3), it was held by Stephen J., following Hadley v. Perks (1), that the goods, being in a building, were not within the early Statutes. The Ful Court agreed with him on that point, and differed on a point im- material to this case. In 1901, the Police Offences Act (N.S.W.) No. 5, sec. 27, re-enacted the former law. In 1902, in Ex parte Lisson (4), the Court seemed disposed to qualify the former cases. It did not so decide, but it questioned the limitation of the Act to streets, but agreed that houses were not within it. When the Victorian Legislature in 1907 proceeded to enact the provisions of sec. 10 of Act No. 2093, they had before them the provisions of the English Acts and the New South Wales Act. But, in view of the decisions up to that date, the Victorian Act substituted - for the words "any thing" the words "any personal property. whatsoever," to meet Keyes's Case (2). It also, in order to meet Hadley v. Perks (1), Frith's Case (5) and Lisson's Case (4), introduced the provision in sub-sec. 3 as to the " building or other _ wise." And - apparently to meet the cases of R. v. Drage (() and

(1) LB. 1Q.B., 444. (4) 28.R. .W. (2) 5 N.S.W.LR. (L.), 359. (5) 17 N.S.W.LR. (L.), 421 (3) 17 N.S.W.LR. (L.), at p. 422. (6) 14 Cox C.C., 85.

from - it introduced the latter alternative of sub-sec. 3. Tn 1908 the case of Tatchell v. Lovett (2) was decided. The judgment of Hood J. throws great light on the subject. His Honor, _ _ reading sec. 10 as a whole and in conjunction with sec. 12, held that __ the object of the legislation was to provide for the immediate arrest flagrante delicto of suspected persons in possession of or conveying _ in some way personal property supposed to have been stolen. He added that sec. 12 implied that the disputed property must neces- sarily be before the Court, and that the absence of any power to enter premises or seize property, apart from the accused person,

seemed to show that the property referred to is to be in the actual custody or control of the accused. In the course of his judgment he also adverts to what he calls a colloquial expression. He refers

"to the phrase " how he came by such property." That is a very _ significant phrase. It shows, in the first place, that the Legislature was not speaking in technical terms ; for, since it used the expression "how he came by such property" as the equivalent of " having Pe possession " of it, it is very evident Parliament was not doing more

than dealing with a very ordinary evil that everybody knew of, in very ordinary terms that everybody understood. It is true that in the latter part of his judgment the learned Judge refers to the evidence of the defendants knowledge. But that has a double bearing: in the first place, it might be very important on the second branch of Mr. Justice Wright's definition of possession, and,

_ next, it might be very relevant as to the satisfactory nature of the _defendant's explanation of how the property came there.

; That case stood unchallenged until 1912, when the Police Offences _ det of that year was passed. It is intituled "An Act to amend and consolidate the law relating to Police Offences." And it does amend the enactment now under consideration by inserting the word "actual" three times before the word " possession," and by

_ inserting a provision as to summoning the accused as an alternative to arresting him. It is clear that Parliament inserted the word

"actual" as a definite legislative declaration that the " possession " which is to bring about criminal consequences entailing possibly (1) 12 Q.B.D., 522. (2) (1908) V.L.R:, 645; 30 ALL. 88.

H.C. or A twelve months' imprisonment is to be no mere legal conception bas

on real property distinction, but a plain fact personal to the accu The very circumstance that the mere "opinion" of the justia that the defendant's explanation is not "satisfactory," coy

but had to consider whether in the particular instance, in circumstances, the man was in such physical control of the prop as in ordinary life would, if unexplained, indicate that he was its possessor. '' Having actual possession" means, in this enactmi simply having at the time, in actual fact and without the necessity: taking any further step, the complete present personal physical con trol of the property to the exclusion of others not acting in concert wit the accused, and whether he has that control by having the prope in his present manual custody, or by having it where he alone has the exclusive right or power to place his hands on it, and so have manual custody when he wishes. In its nature it corresponds to its

companion expression "conveying," which necessarily invoh instant personal physical control to the exclusion of others. These expressions are obviously intended to cover the whole ground of actual personal control - that is, whether the property is kept stationary or is in motion. But it does not include the case of a person who has put the property out of his present manual custody and deposited it in a place where any other person independently of him has an equal right and power of getting it, and so may prevent the first from ever getting manual custody in the future. In that event the property is not in his actual possession : it is where he may possibly reduce it again into actual possession, or, on the other hand, where the other person may himself reduce it into his own actual exclusive possession. 4

That is the present case. The wool, placed in the locker by Moors, had ceased to be in his actual possession, because, though it was in the locker, the locker itself was not, in the words of Mr. Jus- tice Wright, a " receptacle belonging to him" or " under his control," | nor had he the exclusive means or right of opening it and obtaining - the contents. Another Customs clerk had equal right and power

Moors, and independently of him, to open the locker and take H. C. or A. it its contents. The wool was, therefore, at the crucial moment, he

; in fact in the "actual possession " of Moors, and the prosecu- Moors n. necessarily fails. Buraw e appeal is allowed. The order to review is made absolute, © - - the conviction set aside. Appellant to have costs of this appeal

that nothing we have said is to be taken as going beyond the sssities of the present case.

e also say nothing as to the right of a State officer to interfere a Customs locker without the consent of the Customs author- That question has not been raised or argued.

conviction set aside. Appellant to have costs in High Court and in Supreme Court.

Moors v Burke [1919] HCA 32

At a glance

Court

Decision date

Before

Source

Judgment (70 paragraphs)

wR ce Oran Sen,

Cited By (1)