R v Riley [2002] TASSC 86

Moors v Burke [1919] HCA 32; (1919) 26 CLR 265; R v Wiley (1852) Den 37, 169 ER 408; Lowe v Goodluck unreported 9/1985, referred to.

Judgment ID Number: [2002] TASSC 86

1 The accused is charged with the crime of receiving stolen property contrary to the Criminal Code, s258(1). The particulars in the indictment are that on 15 May 2001 he received or had in his possession stolen property, knowing it to be stolen. The crime is defined by s258(1) as being committed by "any person who, without lawful excuse, receives or has in his possession any stolen property, knowing it to be stolen property".

2 Evidence in the form of agreed facts was presented and the jury observed a video recorded interview between the police and the accused. In the absence of the jury I then heard argument relevant to the question whether the Crown may lead evidence under s258(3)(b) that within three years preceding his being charged with the crime, the accused was convicted of other crimes under the provisions of ch XXIII to XXVII and XXVIIIA. By subs(4)(a) such evidence is not admissible "unless ... evidence has previously been given that the stolen property in respect of which the accused is charged was found or had been in his possession". Counsel for the Crown submitted that there is evidence that the stolen property in question was found or had been in the possession of the accused. Counsel for the accused submitted to the contrary. It was agreed that I should receive the submissions and rule on them, at the same time considering whether in fact the accused has a case to answer, the Crown conceding that it will call no other evidence relevant to the question of possession.

3 I will summarise the evidence. The agreed facts include the following. A house in Reatta Road, Trevallyn was burgled between 7am and shortly before 12.40pm on the day in question. The house was ransacked and some of its contents were stolen. At about 12.40pm police observed a Gemini sedan being driven by the accused at Newnham. The vehicle was registered to his girlfriend. There were three passengers in the vehicle. The police attempted to intercept it. The accused suddenly veered right up a private driveway and stopped. All of the occupants decamped. Inside the vehicle at least some of the stolen property was found. Two chainsaws that had been stolen were in the boot.

4 The only other evidence relevant to the issue of the accused's possession of the property in question, is to be found in his interview. He told the police that he had picked up the three passengers and the stolen property near the Trevallyn Bridge, otherwise known as the Gorge Bridge. One of them said that they would give him $50 for taking them in the car. They were carrying bags. He could recall seeing the chainsaws that were subsequently found by the police in the boot. There was some vagueness in his statements concerning whether he saw the other items or whether they were out of sight in the bags. However, it is not in issue, for present purposes, that he knew that his passengers had stolen property. They wished to be taken to Mayfield.

5 It is not the case for the Crown that the accused may have been a party to the burglary.

6 By virtue of the Code, s1, the expression "'have in possession' includes having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question". That is an inclusive definition and it follows that the expression may have an extended meaning. Although it can be said that there is evidence that the accused had some control over the stolen property in his car, in that he had the power to exclude it from his car or to require that if it was to be carried therein it was to be placed in a certain position, I hold that the evidence cannot support a finding of fact that the property was under his control. It was certainly in the actual possession and custody of the three passengers and in my view it was under their control and not his, notwithstanding that in a sense he had some power to control where it might be.

7 The only authorities to which counsel referred were Lowe v Goodluck unreported 9/1985 and Moors v Burke [1919] HCA 32; (1919) 26 CLR 265. In the former case at 10 and 11, Underwood J, referred to Pollock and Wright, "An Essay on Possession in the Common Law" at 118 et seq, for the proposition that possession of moveable objects involves three different concepts. Firstly, possession is used to describe physical possession, a fact which will exist when:

"A person is in such a relation to a thing that, so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so far as regards other persons, the thing is under the protection 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".

Secondly, possession is used to describe a legal relationship of a person to a moveable object with respect to other persons. Such a legal possession may or may not exist without physical possession. It is a legal concept and not a fact. Thirdly, possession is used to describe a right to possession, a right which is often synonymous with ownership.

8 Counsel for the Crown relied on the quoted passage from Pollock and Wright. In that regard, I hold that there is no evidence upon which it could be found that the accused could assume or exercise manual control of the stolen property at his pleasure and there is insufficient evidence to justify a finding that the property was under his protection in his car. In my view, the evidence could only lead to a conclusion that the property remained subject to the manual control of the passengers and remained under their protection and not his.

9 In Moors v Burke the court was concerned with the expression "actual possession" in the Victorian Police Offences Act. In that regard I note that in Weston v Smith [1963] Tas SR 27 at 33, Neasey J considered that there was support for the view that the High Court's definition of "actual possession" could be applied to "possession" in the Police Offences Act 1935, s39, and I think that for the purposes of this case the same can be said for the expression "possession" in the Code. The High Court said at 274:

"'Having actual possession' means, in this enactment, simply having at the time, in actual fact and without the necessity of taking any further step, the complete present personal physical control of the property to the exclusion of others not acting in concert with the accused, and whether he has that control by having the property 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."

10 That statement embodies the concept of control. In this case, the evidence establishes that the three passengers had joint possession of the property. They each had "the complete present personal physical control of the property to the exclusion of others not acting in concert with" them, but the same could not be said with regard to the accused, who did not have control of the property, notwithstanding that he allowed the passengers to transport it in a car driven by him.

11 In the time I have had available, I have searched for other cases for assistance. One such case is R v Wiley (1850) 2 Den 37, 169 ER 408, in which the accused at midnight led two thieves from his father's home into the accused's stable, lighting the way for them with a candle. One of the thieves was carrying a sack, tied at the mouth, containing stolen poultry. Inside the accused's stable the sack was put down and the men stood around it. Police then intervened. There was evidence that they may have been bargaining and that the accused intended to receive the stolen poultry. On appeal, eight of the 12 judges held that the accused could not be convicted of receiving stolen goods because he had not yet received them, notwithstanding that they were in the presence of the accused in his stable. The thieves still had possession and had not yet formed an intention to part with possession.

12 The following were some of the majority views. Talfourd J said that the possession of the thieves excluded the notion of possession by the accused. Platt B said that the thieves had retained the control and possession and never intended to part with it until after a bargain was concluded. Coleridge J pointed out that until the accused purchased the poultry, he never intended to have possession, nor did the thieves intend to admit him to any such possession. Any question of joint possession was excluded by their common intention. Coleridge J made the point that receiving imports possession. Patterson J said that manual possession or a touching was not essential to a receiving, but there must be a control over the goods by the receiver, which was not the evidence in the case in question. Alderson B said that there may be a joint possession of goods in a thief and a receiver, but there was no evidence of that. The thieves always had possession and the accused only had an intention of receiving the poultry. Parke B said that receiving must mean a taking into possession, actual or constructive. The accused never accepted the goods in any sense of the word. The mere receiving of a thief with stolen goods in his possession would not alone constitute a man a receiver.

13 In my view the evidence only supports a conclusion that possession remained with the passengers and that it had not passed to the accused. If manual control of the property had been handed over to the accused and say, he then carried it in the car without the passengers being present, he would undoubtedly have been in possession, but it is my opinion that the evidence that he transported the passengers with their stolen property from near the Trevallyn Bridge with the intention of carrying them, at their request, to Mayfield, did not amount to evidence that he either received the goods or that he had possession of them.

14 For these reasons the Crown will not be permitted to lead evidence under s258(3)(b) of the accused's prior convictions. Having regard to the discussion I had with counsel yesterday afternoon, in the course of their submissions, I also conclude that I should hold that the accused has no case to answer because a jury properly instructed could not reasonably find that he was in possession of the property.