Willis v Burnes [1921] HCA 43

ingly having anything in a house, building, . . . or other place,

eter resecra iy cepted of being stoke ocemllrwfolly obtatant

does not give an account to the satisfaction of such justice how he came by

the same, shall be lable to a penalty not exceeding ten pound oF to imprison-

Hel that whore the Crown has established that the defendant knowingly was Inposeion of certain property and that that property might reasonably be 'Suspected of having been stolen, the onus is upon the defendant of satisfying the justice that he came by the property honesty, and tht that onus it not charged it the justice nlf in doubt as to whether th defendant come by the property honestly.

Decision of the Supreme Court of New South Wales (Wade J.) + Burn v. Willis, 38 N.8.W.W.N., 42, affirmed.

H.C. oy 4. Appear from the Supreme Court of New South Wales, ~

At the Police Court at Werris Creck, before a Police Magistrate, an information was heard whereby John Hugh Burnes charged that Elias Willis did knowingly have a quantity of rabbit-skins ina certain building, which rabbit-skins " may be reasonably suspected of being stolen." 'The Magistrate, having dismissed the information, on the application of the complainant stated a case for the opinion of the Supreme Court in which, after setting out the above facts and the evidence, he said : - * The proceeding was under see. 27 (¢) of the Police Offences Act 1901. It was proved to my satisfaction that the defendant on the day and at the place charged did know- ingly have a quantity of rabbit-skins in a certain building, situate at Henry Street, Werris Creek, in the State of New South Wales, - which said rabbit-skins were reasonably suspected of being stolen, And thereupon 1 called upon the defendant to give an account to my satisfaction how he came by the same. The defendant then gave an explanation which, 1 thought, might reasonably be true, although I was not convinced that it was true. A doubt was thus left in my mind as to whether or not the defendant honestly came by the same, {I held that the defendant was entitled to the benefit of that doubt, and dismissed the information. 'The question for the opinion of the Court is whether my said determination was erroneous in point of law."

'The case was heard by Wade J., who answered the question in the affirmative, holding that, as the explanation offered by the defendant left a doubt in the mind of the Magistrate and so did not satisfy him, the defendant should have been convicted : Burns v. Willis (1).

From that decision the defendant now, by special leave, appealed to the High Court on the grounds: (1) that his Honor was in error in holding that the question asked should be answered in the affirm ative; (2) that, the Magistrate having a reasonable doubt, the defendant was entitled to an acquittal ; and (3) that on the finding of the Magistrate the appellant had given an account to the satis- faction of the Magistrate how he came by the goods in question.

Mack K.C. (with him MeGhie), for the appellant. Admitting 4 ¢. oF A.

stat, on a prosecution under sec. 27 of the Police Offences Act 1901, nhen the accused is shown to have been knowingly in possession af goods which are suspected of being stolen the onus is east upon him of satisfying the justice as to how he came by the goods, that onus is discharged if the accused raises a reasonable doubt 'rhether or not he came by the goods honestly. 'The accused is presumed to be innocent until he is proved to be guilty, and whether doubt arises on the Crown case as to the accused knowingly having Jud the goods in his possession or whether it arises on the defence asto the goods having been honestly come by, the accused is entithed to the benefit of that doubt. 'The words "give an account to the satisfaction of " the justice are used as synonymous with "raise a nasonable doubt in the mind of" the justice. If the justiee's state of mind is that he has a reasonable doubt as to the sufficiency of the explanation, he is satisfied in law. [Counsel referred to Archbold's Criminal Practice, 25th ed., p. 706; R. v. Langmead (1); BR. v. Slerp (2); Trainer v. The King (3); McDonald v. Webster (4) ; Hadley v. Perks (5); R. v. Banks (6) ; R. v. Tolson (7) ; Abrath w. Nonth-Bastern Railway Co. (8); R. v. Wrigley (9); Peacock v. The King (10); R. v. Plummer (11).]

B. M, Mitchell, for the respondent. 'The justice has to ask himself, "Am I satistied ?" - not "Has a reasonable explanation deen given?" All that the Crown has to prove is that the accused Knowingly had in his possession goods which might be suspected of being stolen. 'The gist of the offence is that the accused, being called upon to give an explanation, failed to satisfy the justice that hehonestly came by the goods. (Counsel referred to Bx parte New (12); Bx parte Davis (13); Ex parte Cassidy (14).] [Counsel was stopped.)

() 9 Cox Cc, 468. (8) 11 QBD., 440, at p. 452. @) 80x ¢ (0) INSALR., 100, at p. 162 @)4OLR., ia (10) 13. CLR, G19, at p. 630,

() (913) VLR, 506, at p. 514; 35 (11) (1002) 2 K.B., 999, at p. 348.

(6) V Esp. 144. 14} 19 NSW.W.N., 186. (7) 23. QULD,, 16s, at p. 175. he

Kxox C.J. This appeal raises the question of the correctness of the decision of Wade J. ona case stated by a Magistrate, His Honor decided that, in a prosecution under sec. 27 of the Polie Offences Act 1901, when it bas been established to the satisfaction of the Magistrate that the property may reasonably be suspected of having been stolen and that the defendant is knowingly in pos session of that property, then the onus lies on the defendant of giving an account of how he came by it - that is, of satisfying the Magistrate that he came by it honestly. 'That decision appears to me to be quite correct. I desire to adopt, with slight alteration, what Gordon J. said in Ex parte Potts (1) : - "In my opinion the section throws on the Crown the onus in the first instance of showing that the person charged was in possession of goods, and that those goods were" (this should read "might be") "reasonabiy suspected of being stolen or unlawfully obtained, It seems to me that it isnot necessary to show that the goods were in fact stolen. The offence is that the person charged is in possession of goods which are" (this should read "may be") "'reasonabiy suspected ' of having been stolen, and then fails to give a satisfactory account of how they came into his possession. Tt has been said in one case the offence is not being in possession of the goods, but failing to give a satisfactory account of their possession, when found in possession of goods which are reasonably suspected of having been stolen. In my opinion the onus lies on the Crown first of all to show the goods were * (this should read "might be") 'reasonably suspected of having been stolen; when that has been shown the onus is shifted, and it becomes necessary that the person found in possession of these goods should give an account to the satisfaction of the justice how he came by the same." 1 think that that statement is iterally in accordance with the provisions of the section, A new offence was created by the section and the words of the section are con- clusive as to what the offence is, as to the manner of proving it and.as to the onus of proof. I do not think that the eases cited by Mr. 'Mack are really in point in this case. In those cases it Iay upon the Crown to establish a fact, and if the Crown failed to establish it beyond reasonable doubt, the jury would acquit the accused. () 81 NS.WAWN,, 1, at pe 2.

| But in the present case the statute deliberately provides that if HC. or A. certain facts are established the defendant shall be convicted unless '92: 'he satisfies the Magistrate of certain other matters. In this case 'the Magistrate says that the defendant did not satisfy him of those 'matters, and Wade J. held that in that event the Magistrate should 'have convicted the defendant, and I agree with him.

Solicitor for the appellant, R. J. O'Halloran, Tamworth, by R.

• Levien. Solicitor for the respondent, J. V'. Tillett, Crown Solicitor for 'New South Wales.

Derenpant, =a 2 ae eee Mexnovrse, ON APPEAL FROM A COURT OF PETTY SESSIONS OF ere

SyDNEY, Anduairial Arbtration - Agreement between parties to industrial dispute - Binding op, 17,

Heed of agreement Successor or assignee of party to agreement - Validity of

Commoniealth statute - Commonwealth Conciliation and Arbitration Act 1904- 1920 (Wo. 13 of 1904 - No. 31 of 1920), seca. 24, 29 (ba) - The Constitution (63 E64 Vit 12), see 51 (xxx¥,), (XXXIX)