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[2025] NTSC 66
General information, not legal advice.
Supreme Court of the NT
2025-09-02
Blokland J, Agency J
Original judgment source is linked above.
APPEAL - goods reasonably suspected of being stolen - whether a defendant is required to give evidence in order to rely on defence set out in s 61(3) of the Summary Offence Act 1923 (NT) - defendant not required to give evidence to rely on defence.
Evidence (National Uniform Legislation) Act; s 141(2)
Summary Offences Act (1923) (NT) ss 61(3)
Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562;Eupene v Hales [2000]
NTCA 9;Jackson v Hales; [2000] NTCA 14; Lee v The Queen [2014] HCA
20; [2014] HCA 20; 253 CLR 455; Mahmoud v State of Western Australia (2008) 232 CLR
397; Momcilovic v The Queen; [2011] HCA 34; 245 CLR 1; Mununggurritj v
Rue [2007] NTSC 2; R v Secretary of State for the Home Department; Ex
Parte Simms [1999] UKHL 33; Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573;
Appellant: North Australian Aboriginal Justice Agency
Noble-Webster v Rigby [2025] NTSC 66
[1] The issue here is whether a defendant charged under s 61(2) of the Summary Offences Act (1923) (NT), of being suspected of having custody of stolen goods, is required to give evidence in order to make good the defence provided under s 61(3). Additionally, in this case, whether the defence was made out having regard to the onus on an accused in s 61(3).
[2] On 19 September 2022 the appellant entered pleas of not guilty to two offences. Count one was a charge of aggravated unlawful use of a motor vehicle. Count two was that he had in his custody, five car registration number plates which were reasonably suspected of having been stolen or otherwise unlawfully obtained.
[3] The principal allegations against the appellant were that between 10 and 24 June 2022 he used a silver Toyota Corolla belonging to Cedrent Enterprises without lawful permission. Additionally, on 24 June 2022 he had in his possession, five stolen registration number plates. Those plates were located in the back of the car. The appellant was seated in the driver's seat at the time of his arrest when police searched the car.
[4] On 21 September 2022, the appellant was found not guilty of count 1, the unlawful use of a motor vehicle charge. He was found guilty of count 2 as it was found he had custody of the number plates "by virtue of the fact that he was the only person in charge of the vehicle when police attended on 24 June"[1] and had not given a satisfactory account to the Court.
[5] Once satisfied police had a reasonable suspicion the plates were stolen or unlawfully obtained, the Judge found the onus fell to the appellant to give the court a satisfactory account as to how he obtained them. The Judge remarked the appellant "did not avail himself of the opportunity to give evidence, and to give the court a satisfactory account as to how he obtained the property." On whether the account given to police could amount to a satisfactory account, the Judge found it was not a satisfactory account "and it is one that was in any event given to the police officer rather than the Court."[2]
[6] The Judge found there were four plates (not five as charged) which were suspected of being stolen.[3]
[7] Although the focus of the appeal is on count 2, because of the close connection of the facts constituting both offences, evidence relevant to count 1 which the appellant was acquitted of will be briefly summarised given it is evidence which influences the assessment of the facts and explanation relevant to count 2, to some degree.
[8] Constable First-Class Nankivell gave evidence about her observations of the appellant at the time of the alleged offending on 24 June 2022. She told the Court that on that morning she believed she saw a car that was reported stolen. Her belief was based on work done the previous day with a colleague on a different case which involved reviewing CCTV from two different service stations. During the course of that work, she took a photo of the 'vehicle of interest' and on the day of the offending observed the same vehicle, a Toyota Corolla with South Australian number plates. She noticed the registration plate was affixed to the front left-hand side which was not common. She suspected the car was stolen and reported it to police communications. She noticed a person (the appellant) in the car.[4] CCTV of the car being driven on previous occasions was identified by Constable Nankivell and exhibited through the Officer in Charge, Constable First-Class Arno Swart.
[9] Following Constable Nankivell's report, Senior Constable Neil James gave evidence of his attendance at the scene, and his interactions with the appellant on 24 June 2022. From the available investigation information, he concluded the car was an outstanding stolen vehicle.[5] He described briefly the search he made of the vehicle including that he located five registration number plates. He checked the number plates. Asked if he formed a suspicion the number plates had been stolen, he said "not everyone carries a spare set of number plates." He noticed there were also tools which could remove plates and the plates were in a stolen car. The plates could not be seen from outside of the car; when he opened the door he could see them on the back seat.[6] He said there was a PROMIS report at the time which indicated they had been stolen.[7] The plates had been removed from another car. He arranged for the car to be towed away from the location. He obtained CCTV and uploaded body-worn footage ('BWF') which was exhibited.[8]
[10] A transcript of Senior Constable James's BWF was filed by agreement between counsel at the appeal hearing.[9] The extracts most relevant to the questions on appeal, which followed reasonably friendly introductions, pleasantries and identification questions appear to be as follows:
Appellant: No, not my car. No. Just waiting with it... Just waiting with it.
Appellant: Um, this was um, I'm not sure. I think it's a hire car.
Appellant: He went to go - to go get. To go get help. Yeah.
James: Well I've had a report that this vehicle is actually stolen.
Appellant: [Looking behind the car] Yeah that's from his car.
James: Just put your hands forward for me. I'm just gonna cuff you. Okay?
James: For your safety and my safety, okay. You understand that? Yeah?
James: So what else have you got in here mate? What, what's all this shit?
Appellant: Oh it's the guys (inaudible) leave it in the back.
Appellant: Oh (inaudible) tools in the back, there's heaps of tools in the back.
James: So where did those number plates come from? Do you know?
James: You obviously understand how suspicious this looks.
Appellant: If I knew that I wouldn't have even been in this --- been in here [pointing to front passenger seat of vehicle].
Appellant: I didn't know that (inaudible) thought it's a hire car. I didn't know it was stolen.
James: It's a hire car and you've got all that shit in here?
Appellant: Yeah, it's like, that's what I mean. I didn't know, didn't know that it was stolen, yeah.
James: I'll work out what the go is with this car. Because it has been reported stolen.
Appellant: Yeah alright, well I know that he is from Katherine. Um, he come up here and
Appellant: I can show you on Facebook. [Looking through mobile phone in hands] he's a mate of a mate, really. Yeah.
Appellant: Mate of a mate. Yeah, I met him through, um, through Sebastian Wanambi. So like, you know what I mean? Like a know that they're, they're not, they're not a good crowd, but.
Appellant: See I can't even really get into Facebook. My password (inaudible) looking through phone].
Appellant: I'm trying to ring up for fuel and trying to and get, get somebody you know? I've been here for about an hour and a bit.
Other police: I saw this car on the way to work but I checked (inaudible) and there is nothing on there. Is it recently reported or is it older? The OIC. I've asked him to gimme some more info. I do know because I've been driving around with him getting CCTV of it like at servo's and stuff like that. So would there be equipment in there that he is used for the robberies and stuff like that.
Other police: No, apparently he is not implicated in the robberies.(Inaudible) sitting in the car. It's been used by (inaudible) a whole heap of people.
Other police: But apparently he's not involved in the robberies. So he can just be done for whatever we found him for today.
Other police: Yeah, it's unlawful use or (inaudible) whatever you find in it.
Other police: Well, it's stolen. Yeah, I think it's recorded on PROMIS. That's what I've been told.
[11] Constable First-Class Arno Swart gave evidence about the conduct of the investigation and his observations through attendance at the scene.[10] He outlined the information he had which indicated the car was stolen, principally sourced from CCTV of the PUMA Truckshop.
[12] Constable First Class Swart agreed when he spoke to the appellant, he nominated another person as the driver.[11] Constable Swart's evidence indicated there were two sets of plates, one set of plates was visible on the back seat and one set in what at various stages was termed a 'crevice', which was not immediately visible. There were four plates in total. The plates were only discovered when the car was taken back to the station and the seats manipulated.[12]
[13] Relevant parts of Constable First-Class Swart's BWF appear to be as follows:
Appellant: Um, I wasn't driving. I, I just stayed there because I run outta fuel on my way to go to get some fuel.
Appellant: Um, so it was, it was originally from Will and, um, Joan Bowen. Um, I, I know, I know Joan, I know Will, uh, I don't really know. I dunno his last name.
Swart: What can you tell me about the robbery that the car was involved in on the 9th. Near PUMA Jingili.
Appellant: Oh fuck. What do you mean? No, no, I don't know nothing about that, Sir, no. No, I don't know nothing about no robbery, so I'm not, I'm not no violent offender or nothing like that Sir.
Swart: Yeah. So when did you come into possession of the car? When did you start using it?
Appellant: Um, so yeah, pretty much like a couple days ago.
Swart: Okay. Alright. And you dunno who was using it on the 9th?
Swart: Well, obviously it's a stolen car, so that's why we're here.
Appellant: Yeah, well I'm, yeah, well I'm the - the officer just told me yeah that it's a stolen car and. But Bruz, I wouldn't be sleeping in it if I knew it was stolen, you know what I mean?
[14] A number of exhibits were received by the Local Court which included:
[15] Of those exhibits, Constable First-Class Arno Swart's BWF (Exhibit D1) and Senior Constable Neil James's BWF (Exhibit P2) have assumed significance in the appeal, the conversations were submitted to inform the question of whether a satisfactory explanation had been given.
[16] A statement from Richard Cottrell[13] confirmed the silver Toyota Corolla, registered S492CKA was a hire car, hired by Stasha Canning on 30 April 2022. It was due to be returned 2 May 2022. The car was stolen and reported as stolen on 13 May 2025. Mr Cottrell stated the renter was contacted on 8 May 2022 and was advised to return the vehicle or police would be informed. The car was not returned.
[17] Stasha Canning stated[14] she lived in Katherine; she gave a bank card to Joan Bowen so she could hire a car for herself; Joan Bowen transferred the money to Ms Canning's account; she did not see the car herself but asked Joan to return it on time so there would be no late fees. She had no reason to think Joan had not returned the car. Joan had a car accident when she drove from Katherine to Darwin and was hospitalised. Stasha Canning said she explained everything to Katherine police on 16 May 2022.
[18] Valentina Floeck stated[15] she is the registered owner of a 2019 silver Toyota Corolla, CE45RF and on the evening of 23 June 2022 her car had number plates attached. On 24 June 2022 at about 6:00am she noticed the number plates were missing.
[19] As officer in charge at the time of the appellant's arrest, Constable First Class Swart was asked if he made any further investigations beyond dropping off the prosecution file to Palmerston Watchhouse on 24 June 2022 at 12:30. He said he obtained the statements from Stasha Canning and Richard Cattrell. [16]
[20] Constable Swart said he did not watch the BWF of the arresting officer's interactions with the appellant. He accepted the appellant had denied driving the car. He agreed he probably should have watched the arresting officer's BWF of his conversation with the appellant in which the appellant nominated another person as the driver who he had said, at the time of his apprehension, was walking to get fuel. Constable Swart agreed no effort was made to check the nearby service stations or COMMS as the appellant had been seen in earlier footage using the car and a few days later was arrested inside the car. However, he agreed with the suggestion he should have looked into whether someone was walking to a petrol station to get fuel as was suggested by the appellant.
[21] Constable Swart said when he took the car back to the Watchhouse compound, he looked inside to the back seats and there was one set of plates. Then he found two individual plates. In total there were four plates. He found them by folding down the back seats, in a crevice between the boot and the back seat. They were wedged in the same area. One set was on the back seat. The plates in the crevice could only be discovered by manipulation of the seats.[17] He did not question the appellant about the plates. Constable Swart was not aware the appellant had nominated the driver of the car as the owner of the plates.
[22] Constable Swart said he did not have the car, plates or points of entry to the car dusted for fingerprints. He did not swab for DNA, adding that the CCTV showed there were many people that had been using the car.[18]
[23] Constable Swart agreed that he knew someone had taken out the rental agreement of the car using Stasha Canning's licence. He agreed Ms Canning nominated Joan Bowen as the person who took the car. He did not investigate Joan Bowen but was aware she was in custody at the time.[19] He agreed the names 'Will and Joan Bowen' were names nominated by the appellant and that Joan Bowen and Will Bowen were likely material witnesses who he could have approached, but were not. Neither Joan Bowen or Will Bowen were summonsed to give evidence. He agreed the car was unaccounted for, for nearly 2 months and presumably was in the possession of Joan Bowen.[20]
[24] The appellant did not call or give evidence.
[25] In the Local Court, counsel for the prosecution submitted with respect to count one that the appellant used the vehicle and that through the CCTV, there was sufficient evidence that he had "some use" of the vehicle on both 10 June and 24 June.[21] On 10 June there was evidence that he was seen driving the vehicle and re-fuelling it, however whether the appellant was identified from the CCTV was a matter for the Court.
[26] In terms of events of 24 June, counsel for the prosecution pointed out the appellant was sleeping in the car and even if it was assumed that he was not driving, it was submitted that sleeping in the car constituted a form of use of the vehicle. The Court was advised the fault element was recklessness,[22] and it was submitted the Court should take into account the appellant was aware the vehicle was a rental as that is what he told Officer Neil James. It would be reckless for the appellant to assume that the vehicle may not have been stolen in those circumstances.[23] The BWF of Officer Swart indicated the appellant got the vehicle from friends and had stated it was a couple of days before. However, there was clear evidence he was driving the vehicle a few weeks before. He unlawfully possessed the vehicle. It was said to be reckless of him to assume that the rental was ongoing.[24]
[27] With respect to count two, counsel for the prosecution submitted that whether the property was reasonably suspected of having been stolen was a matter of circumstance and the fault element was recklessness. Officer Neil James's evidence was that there was a set of plates on the back seat, there were tools which he saw when he opened the door which likely had been used to remove those plates from other cars. In circumstances where the police officer had seen the plates, seen the tools, and they were in a vehicle he knew was stolen, Officer James formed the view that plates that he could see were stolen. Counsel submitted it was not relevant that some of the plates were not visible.
[28] On the prosecution case, what amounted to possession of the plates was that they were present in the vehicle when the appellant was the only person present in the driver's seat, and that he was seen driving the car two weeks before. Additionally, he had not given evidence to indicate he had no knowledge of the plates, but as a matter of law the fact that the car was under his control meant he was in possession of them.
[29] On behalf of the appellant, it was submitted in the Local Court that the case was a circumstantial case and therefore directions in the terms of Shepherd v The Queen[25] should be made. In terms of Shepherd counsel submitted the Judge was required to rebut any alternative hypothesis consistent with innocence that is reasonably open.
[30] Further, counsel submitted a direction in accordance with Mahmoud v State of Western Australia[26] should be made as police failed to take a statement or to summons or make Joan Bowen and Will Bowen available to give evidence. Additionally, police did not collect DNA or fingerprint evidence and there was no investigation of the appellant's explanation to Senior Constable Neil James that someone else had been driving the vehicle on 24 June 2022, prior to the appellant's arrest.
[31] The defence submissions relevant to count one focused on whether the prosecution had proved the appellant had knowledge that car was stolen. The submission highlighted the fact the appellant told Constable Swart it was a hire car, which originated from Will and Joan Bowen. The Local Court was reminded that this arrangement may have been made fraudulently by Joan Bowen,[27] and that the car was being driven by another man on the date the appellant was arrested.
[32] In relation more particularly to count two, the subject of the appeal, reliance was placed on the account given by the appellant to Senior Constable Neil James that someone else had been driving the vehicle on 24 June 2022 and the appellant believed that person to be the owner of the registration plates. Defence counsel submitted there was a failure by police to investigate the appellant's account, which was consistent with innocence. Additionally, that even if the Court found as a matter of fact the appellant was the driver of the car on 24 June 2022, there was still insufficient evidence to establish his recklessness with respect to having custody of the plates reasonably suspected of being stolen. The Local Court was asked to consider the location of the plates within the vehicle, namely that only two of the plates located within the car were clearly visible and those two plates were a matching set. The Court was asked to consider that a person driving a car with two visible matching registration number plates on the back seat would not prima facie be reckless as to those number plates being stolen. There were other reasonable hypotheses consistent with innocence about why the number plates might be present. Defence counsel submitted the appellant's explanation was sufficient to justify an acquittal.
The Judge's reasons for the acquittal on count 1 and the finding of guilt on count 2.
[33] The Local Court Judge reserved her decision.
[34] In her reasons the Judge found the conduct element of count 1 proven, as the CCTV footage of 10 June at the PUMA Truckstop showed the appellant parking, refuelling and paying for the fuel. The BWF of Officer James showed him sitting in the driver's seat on 24 June and the appellant told him he had been sleeping in the car while waiting for his friend's return from a service station with fuel.[28]
[35] In terms of the fault element, the Judge acknowledged the case was circumstantial. She reviewed the prosecution submission which alleged the appellant was reckless as to unlawful use; that the appellant displayed consciousness of guilt by telling Officer Swart he received the vehicle from a friend "a few days before" when the footage shows him driving the car some weeks before; that any reasonable person would have regard to the fact that a car rental may have lapsed and it would be reckless to use the car without enquiring about the lease agreement.[29]
[36] The Judge referred to the defence submission that the fault element had not been proven; that the appellant had provided an account consistent with innocence; that Officer James's BWF records the appellant stating the car was a hire car, arranged by, "my mate Will" who had gone to get fuel and that the appellant had waited for an hour. The Judge recalled Officer Swarts's evidence that the appellant was recorded saying "I ran out of fuel. I was just waiting", and that the vehicle "was from Joan and Will". She also noted the statement of Ms Canning confirming with police on 16 May that her friend, Joan Bowen had misappropriated her credit card and used her identification to hire the car. The Judge said this added weight to the appellant's explanation.
[37] The Judge remarked police did not investigate those accounts which were consistent with the appellant's account, when they could have undertaken such as investigation. She rejected the prosecution submission of a lie on the part of the appellant and said the statement concerning how long he had been driving the car could have been an inadvertent error or figure of speech.[30]
[38] It was held there was not sufficient evidence to prove the appellant was reckless as to the unlawfulness of the use of the car, on the contrary, on the prosecution case the appellant had reason to believe that Joan and Will leased the car, and he was therefore not unlawfully using it.
[39] With respect to count 2, the Judge found the appellant had custody of the plates. He was in the driver's seat; the number plates were located on the back seat and in the crevice between the back seat and the boot. There was no one else in the vehicle. He was the only person in charge of the vehicle. There were only four, not five plates. Two were on the back seat and two were in the crevice. Referring to Officer James's evidence, the Judge found the plates were reasonably suspected of being stolen or unlawfully obtained. Having made that finding, the onus shifted to the appellant.[31]
[40] The Judge expressed the ultimate finding on count 2 as follows:
These elements having been satisfied, the onus falls to the defendant to give to the court a satisfactory account as to how he obtained the property, as per subs(3). The defendant did not avail himself of the opportunity to give evidence, as to give the Court a satisfactory account as to how he obtained the property. Reference was made to the fact that in the BWF of Officer James, he could be heard to say it belonged to someone else.
I do not find this is a satisfactory account, and it is one that was in any event given to the police officer rather than the Court. That being the case, I find this count proved. But I note the finding is with respect to four plates instead of five.[32]
[41] The grounds of appeal, slightly amended at the hearing of the appeal are:[33]
[42] If either ground was made out, it was submitted the Court should consider s 61(3) afresh on the evidence that was before the Local Court.
[43] Section 61 of the Summary Offences Act provides:
personal property includes money in cash or cheque form, or deposited in an ADI account or other account.
premises includes a structure, building, vehicle, vessel, aircraft, hovercraft, land or place.
(a) has in that person's custody any personal property;
(b) has in the custody of another person any personal property;
(c) has in or on any premises any personal property; or
(d) gives any personal property to a person who is not lawfully entitled to it,
being personal property which, at any time before the making of a charge for an offence against this section in respect of the personal property, is reasonably suspected of having been stolen or otherwise unlawfully obtained, is guilty of an offence.
(3) It is a defence to a charge for an offence against subsection (2) if the defendant gives to the court a satisfactory account:
(a) As to how the defendant obtained the personal property referred to in the charge; and
(b) Of the custody of the personal property by the defendant after it was obtained by him or her for each period during which the defendant had custody of the personal property.
[45] On appeal Counsel for the respondent submitted, contrary to the appellant's submissions, the words in s 61(3) 'if the defendant gives to the court a satisfactory account' means that a defendant must give evidence in their case and be subject to cross-examination.
[46] The respondent relied on Jackson v Hales[36] in support of that contention. That case was focused on the meaning of a previous iteration of 'exceptional circumstances', within the Sentencing Act.[37] The 'exceptional circumstances' provisions were introduced to regulate aspects of mandatory sentencing for property offences. Jackson v Hales was particularly concerned with the former s 78A(6C)(d) 'that the offender cooperated with law enforcement agencies in the investigation of the offence'. Section s 78A(6c)(d) was being considered in the context of an offence against s 61. At [4] the Court of Appeal said:
If a defendant wishes to avail himself of that defence it is incumbent upon him to give to the Court (as distinct from investigating authorities) a satisfactory account as to how the defendant obtained the personal property.
[47] In that matter the Court of Appeal was emphasizing the peculiar circumstances of s 78A(6C)(d) considerations arising in the context of an offence against s 61. The Court was demonstrating the difference between the way the provisions operate. 'Exceptional circumstances' required cooperation with law enforcement in the investigation of the offences whereas s 61 required satisfying the Court of an explanation. The point made was s 61 does not require investigating authorities to be satisfied, but rather the Court. 'Exceptional circumstances' required cooperation with investigators. Section 61 did not.
[48] The appellant in Jackson v Hales failed at every level. For s 61 purposes, both the Magistrate, the appeal Judge at first instance and the Court of Appeal rejected his explanation which had also been rejected by investigating police. The explanation given to the Court rather than to investigators was the single decisive and relevant explanation under s 61 whereas for 'exceptional circumstances' cooperation with law enforcement agencies was the factor to be assessed, rather than any explanation to the Court.
[49] In my view, that is why the Court of Appeal in Jackson v Hales made the distinction pointed out on behalf of the respondent in para [4] as above. The Court of Appeal was at pains to state the appeal was resolved by a consideration of the matter limited to its own facts.
[50] Although s 61(3) reverses the onus and requires a 'satisfactory account' be given to the court, it does not go so far as to require that account be given exclusively by the defendant giving evidence. There is nothing in s 61(3) preventing a defendant from pointing to evidence in the prosecution case, or their own case in order to give a 'satisfactory account'.[38] If that account arises in other evidence and does in fact satisfy the Court, on the balance of the elements in s 61(3)(a) and (b), then the defendant would not be required to give further evidence - although they could if they chose to.
[51] Section 61(3) does not clearly and unambiguously override the fundamental principle that an accused person cannot be required to testify. It is acknowledged that for practical purposes in many cases falling within s 61 an accused may decide to give evidence and indeed it may be required if they are to successfully make out their defence. However, there is nothing in s 61(3) that suggests evidence of an account cannot be sourced in other evidence in the case. In this matter, one of the exhibits was tendered on behalf of the appellant which contained part of an account.[39] Section 61(3) should not be construed in a way which prevents evidence tendered by either party from being considered if it contains the 'account'.
[52] Counsel for the appellant submitted the principle of legality required a court to interpret s 61(3) in a manner so as not to abrogate or curtail human rights or freedoms unless such an intention is clearly manifested by unambiguous language.[40]
[53] The often quoted passage of Lord Hoffman in R v Secretary of State for the Home Department; Ex Parte Simms[41] describes the principle of legality as follows:
....[T]he principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.
[54] In Lee v The Queen,[42] the High Court at [32] stated (citations omitted):
Our system of criminal justice reflects a balance struck between the power of the state to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person... The principle is so fundamental that "no attempt to whittle it down can be entertained," albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice.
The companion rule to the fundamental principle is that an accused person cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof.
[56] Further, at [44] it was stated 'a statute, which on one construction would encroach upon the presumption of innocence, is to be construed, if an alternative construction be available, so as to avoid or mitigate that encroachment'.
[57] A number of reverse onus provisions require a court to be 'satisfied' of the elements of the defence. Such reverse onus provisions do not require a defendant to give evidence and are not uncommonly discharged by evidence adduced in cross-examination of witnesses in the prosecution case.[45]
[58] It is concluded here that s 61(3) of the Summary Offences Act places an evidential and legal burden on a defendant. It provides for a defence but does not abrogate the right to silence or change the accusatorial nature of the criminal justice system. That it is a 'defence' in the true sense was made plain by Attorney General Manzie in the second reading speech when the provision was amended:[46]
[T]he existing section 61 of the Summary Offences Act provides that the offence is not completed until the suspect fails in court to give a satisfactory explanation as to how she or he came by the property. Under the proposed new s 61, the explanation of how she or he came by the property shall be a defence to the offence rather than being part of the actual offence.
[59] Without clear intention expressed in s 61(3) that a defendant is to provide sworn evidence, or be cross-examined, or is excluded from relying on other evidence to establish the defence, s 61(3) cannot be construed as requiring, as a matter of law, a defendant to give sworn evidence in order to rely on the defence. Without statutory imprimatur such a construction would lead to a significant incursion into usual criminal procedure and commonly understood rights to a fair trial at common law.
[60] Despite what was said in Jackson v Hales as mentioned above which dealt with a specific set of circumstances, other decisions tend to support the position submitted on behalf of the appellant.
[61] In Eupene v Hales[47] the Full Court considered the application of s 61 in circumstances where a defendant had pleaded guilty and faced 14 days imprisonment under a previous mandatory sentencing regime. Both Angel J and Thomas J questioned whether the admitted Crown facts before the Magistrate contained proof of the offence charged, following the plea. The subject property was pearls. The Crown case was that the defendant had stated to police that he found the pearls two days before being searched by police while he was walking along Vesteys beach. He removed the pearls from the bags and placed them into his pocket, took them home, cleaned them and placed them in a tobacco tin. He told police they looked expensive and he thought they would be worth a lot of money and he would keep them. He did not make any attempts to locate the owner and did not have permission to retain the pearls. In the proceedings before the Magistrate, the defendant's counsel confirmed most of the facts, save for saying that the defendant did not know whether or not they were valuable when he found them and he took them home and cleaned them and then did not think about them again. He had not tried to change the form or identity of the pearls to make them difficult to return to the owner, nor did he try to sell them.
[62] That explanation was accepted by the Court. The explanation was given to police and on his behalf by his counsel. The defendant did not ever give evidence about it. The Court concluded, notwithstanding the plea of guilty and without addressing whether evidence was required in such circumstances, that the offence was not proven. While two of the Judges thought the elements were not made out in terms of the suspicion of being stolen, Justice Thomas was also clearly of the view that the appellant's explanation to police was not in dispute and had not been addressed. The conviction was set aside.
[63] Although Mununggurritj v Rue[48] was determined on a different point, namely whether there must be a coincidence between possession of the subject property and the reasonable suspicion when discussing the case law, Riley J accepted that the defendant in Eupene v Hales "had given an innocent explanation for his possession of the pearls".[49]
[64] It is concluded it was an error to construe s 61(3) as requiring the appellant to give evidence. Ground one will be allowed.
[65] Ground two concerns whether the appellant's account satisfies s 61(3) on the balance of probabilities.
[66] The Crown submitted the appellant did not give a satisfactory account. It was suggested the only evidence which amounted to an account, was the following exchange between the appellant and Senior Constable Neil James:
[67] This, it was submitted, was not a satisfactory account. Those answers do not identify the person nominated by the appellant. There is no identification of where the number plates came from. There is no information given about how the appellant became aware the number plates were in the back of the car or when they came into his custody. Overall, it was submitted to be an account devoid of details and not capable of constituting a 'satisfactory account' within the meaning of s 61(3).
[68] Further, the respondent pointed out this is not a case of inconsistent verdicts and the evidential considerations relevant to each charge are separate. Count 1 had a dishonesty element which the Crown was not required to prove in order to prove count 2. The respondent also relied on the part of the BWF recording between the appellant and Senior Constable James's when James says, "You obviously understand how suspicious this looks" and one of the appellant's responses was "Yeah, I know, sir. I know".
[69] Counsel for the appellant submitted a satisfactory explanation was forthcoming from the appellant. In the BWF with police he told them the car was not his; it was a hire car and the licence plates were not his; that the car was hired by his mate Will and when asked about the plates said "Yeah. That's from his car," meaning, it was submitted, from Will's car. Then he was asked "His car?" and the response was "Yep". Counsel pointed out that when asked about the tools the appellant replied "Oh, (inaudible) tools in the back. There's heaps of tools in the back". When asked what they were for, he answered, "These are all my friend's" and in relation to where the numberplates came from, he said "That's from his car." After he acknowledged it looked suspicious, he said "If I knew that I wouldn't have been in the car."
[70] The only stated part of the appellant's explanation and why it was not accepted by the Local Court was the Judge's reasons when she said the appellant was heard to say the plates belonged to someone else. The explanation went further than the reasons disclosed. Although one may be disinclined to accept the appellant's self-serving statements, the fact some of what he said to police was supported by other evidence tends to increase confidence in his statements to police.
[71] Not all facts relevant to the unlawful use of a motor vehicle charge are relevant to count 2. At the same time, it would be wrong not to consider context and those facts which have some relevance to the explanation. An acquittal, in usual circumstances, says very little about the facts. By itself, an acquittal proves nothing. Here, the Local Court Judge was not satisfied beyond reasonable doubt as to the appellant's knowledge of the car being stolen. However, she was satisfied to some level, that the car had been hired through an arrangement with Ms Canning and Joan Bowen. Joan Bowen and Will were persons the appellant mentioned to police as having the hire car.
[72] It seems to me that those foundational facts may be accepted on the balance of probabilities. Those facts amount to corroboration of some of the appellant's explanation to police. It lends weight to the appellant's statements that the car and indeed the number plates were in fact from Will's car as far as he knew. The appellant gave the information that he had as to the source of the plates.
[73] That the appellant acknowledged the plates were suspicious after effectively being asked the same by police provides some, but not significant weight against his explanation given the subject of the plates was the very property police were questioning him about. It did not detract from the explanation they were Will's plates from Will's car.
[74] If a set of the plates did in fact belong to Valentina Floelk, given her statement was to the effect her plates had been missing for around 24 hours, then any knowledge the appellant would have had of those plates was likely minimal. If it is accepted the appellant had been seen driving the car two weeks before the arrest, that is not helpful towards proof of count 2 as it is not known, nor has it been shown the plates were in the car previously. Police had also said the car had been used "by a whole heap of people".[50]
[75] There was no evidence to counter the explanation expressed to police, that the car and the plates were Will's. Although that explanation by itself may not be persuasive, when viewed with the other evidence which supports the car being hired by a named person or persons and the car and plates by extension were 'Will's', the explanation on balance favours the appellant. There was no evidence to counter the appellant's explanation of brief or recent knowledge of the plates in a friend's or associate's car for whom he was waiting.
[76] The explanation satisfies s 61(3)(a) of how the plates were obtained and in terms of s 61(3)(b) the plates may have been very recently obtained by Will, given the other evidence from Valentina Floelk about one set of plates. There would not appear to be any distinct periods that could be addressed further by explanation. Even if the plates the subject of count 2 were not Valentina Floelk's, it is simply unknown when they may have come into the appellant's custody, aside shortly before apprehension by police and what he told police, that they belonged to the same person who hired the car. Ground 2 will be upheld.
[1] Transcript, Local Court, 21 September 2022 at 3-4.
[4] Transcript, Local Court, 19 September 2022 at 5-6.
[5] Transcript, Local Court, 21 September 2022 at 11.
[6] Transcript, Local Court, 19 September 2022 at 8.
[7] Transcript, Local Court, 21 September 2022 at 9.
[9] Through no fault of either party or counsel, transcripts and certain exhibits were not available at the first attempted hearing of the appeal and the matter was adjourned to ensure all material including an agreed transcript was before the Court.
[10] Transcript, Local Court, 19 September 2022 at 13-14.
[11] Transcript, Local Court, 19 September 2022 at 19-20.
[16] Transcript, Local Court, 19 September 2022 at 19.
[17] Transcript, Local Court, 19 September 2022 at 20.
[18] Transcript, Local Court, 19 September 2022 at 20-21.
[19] Transcript, Local Court, 19 September 2022 at 23.
[20] Transcript, Local Court, 19 September 2022 at 24-25.
[21] Transcript, Local Court, 19 September 2022 at 27.
[22] Section 43AM(2) Criminal Code.
[23] Transcript, Local Court, 19 September 2022 at 27-28.
[24] Submissions were also made with respect to the circumstances of aggravation, but that is of no relevance to this appeal: Transcript, Local Court, 19 September 2022 at 28.
[27] Transcript, Local Court, 19 September 2022 at 30.
[28] Transcript, Local Court, 21 September 2022 at 2.
[30] Transcript, Local Court, 21 September 2022 at 3.
[31] Transcript, Local Court, 21 September 2022 at 3-4.
[32] Transcript, Local Court, 21 September 2022 at 4.
[33] Appeal Transcript - 16 April 2024 at 4-5.
[35] Section 43 BW Criminal Code; s 141(2) Evidence (National Uniform Legislation) Act.
[37] Now repealed s 78A(6B) and s 78A(6C)
[38] Many circumstances the only way such an account may be given is by a defendant giving evidence.
[39] Exhibit D1, BWF of Constable First Class Swart.
[40] Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; Gleeson CJ at [19]-[20].
[44] Momcilovic v The Queen, [2011] HCA 34; 245 CLR 1at [43].
[45] Momcilovic v The Queen at [665], per Bell J.
[46] 2nd Reading Speech, Hansard record of Legislative Assembly of the Northern Territory, 22 November 1989 at 143.
[49] Mununggurritj v Rue [2007] NTSC 2 at [17].
Noble-Webster
Rigby [2025] NTSC 66
(2008) 232 CLR
397
(1990) 170 CLR 573
(2008) 232 CLR 397