Goods In Custody

Question 1

What are the proofs of Goods in Custody?

Answer 1

The Accused:

• Knowingly
• Had a thing
• In his/her custody or in the custody of another; or in premises; or gave custody to a person who was not lawfully entitled to possession of the thing; and
• Which may be reasonably suspected of being stolen or otherwise unlawfully obtained

Question 2

Under what section of the Crimes Act is the offence of Goods in Custody found?

Answer 2

Section 527C

Question 3

For a Goods in Custody offence, does “premise” include “vehicle“ (in S527 subsection (c))?

Answer 3

Yes. Premises includes vehicle

Question 4

Where did the offence of Goods in Custody arise from?

Answer 4

The purpose of Section 527C arose as a means to provide police with the ability to charge someone who has possession of goods which are suspected of being stolen or otherwise unlawfully obtained, but lack the proof for a charge of larceny or receiving.

Question 5

Goods in custody “may be reasonably suspected”

Answer 5

All that is required is a reasonable suspicion (attached to the goods not the person) - does not require proof that the goods were in fact stolen/unlawfully obtained - objective test only. A reasonable suspicion based on facts which would create a reasonable suspicion in the mind of a reasonable man.

Question 6

Section 527C (1A) is an amendment to include giving of custody of a motor vehicle to a person (including motor vehicle parts). What is the Statute of Limitations for this subsection?

Answer 6

Statute of Limitations when it involves a vehicle (S527(1A)) is 2 years after the date of the commission of the offence.

Question 7

What is the statutory defence for Goods in Custody and when can it be used? Cite legislation.

Answer 7

The statutory defence for Goods in Custody is found at Section 527C(2). It can be used ONLY after the prosecution has established prima facie. The defence is: It is a sufficient defence to a prosecution for an offence under subsection (1) if the defendant satisfies the court that he or she had NO reasonable grounds for suspecting that the thing referred to in the charge was stolen or otherwise unlawfully obtained.

Question 8

What are the four different (separate and discrete) subsections relating to GIC?

Answer 8

Section 527C. Any person who:

1. Has any thing in his or her custody
2. Has any thing in the custody of another person
3. Has any thing in or on premises (whether belonging to or occupied by himself or herself or not) or whether that thing is there for his or her own use or the use of another, or
4. Gives custody of any thing to a person who is not lawfully entitled to possession of the thing, which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained

is liable for conviction.

Question 9

What are the penalties for Goods in Custody?

Answer 9

If the thing is a motor vehicle or motor vehicle part, or a vessel or a vessel part - 1 year imprisonment or 10 penalty units or both.

In the case of any other thing - 6 months imprisonment or 5 penalty units or both.

Question 10

Does a statute of limitations apply in relation to Goods in Custody and what is it?

Answer 10

Yes. Section 179 of the Criminal Procedure Act states that there is a 6 month statute of limitations for Summary offences - unless an Act provides otherwise.
Beware of subsection (d) as the offence occurs at the time of giving custody to the other person
Section 527C (1A) does provide otherwise - giving custody of a motor vehicle to a person who is not lawfully entitled to possession - car rebirthing - 2 year statute of limitations.

Question 11

What is the statutory defence for Goods in Custody? And where is it found?

Answer 11

The statutory defence for GIC is found at Section 527C (2). It states at 527C (2) that it is a sufficient defence if the defendant satisfies the court that he or she had no reasonable grounds for suspecting that the thing referred to in the charge was stolen or otherwise unlawfully obtained. (Subjective test).

Question 12

What are the proofs for Goods in Custody?

Answer 12

1. The Accused
2. Knowingly
3. Had a thing
4. In his/her:
   - custody
   - in the custody of another
   - in or on premises, or
   - gave the custody to another who is not lawfully entitled to possession of the thing, and

Which thing may reasonably be suspected of being stolen or otherwise unlawfully obtained.

Question 13

What did R v English find in relation to the Magistrate’s role when it comes to Goods in Custody charges?

Answer 13

It was found in R v English that the Magistrate or Court must hold reasonable suspicion at the time of the hearing:

“It must be determined not according to the subjective beliefs of the police at the time but according to an objective criterion determined by the court before whom the Accused stands charged”. - R v English.

Question 14

What did Morris v Russell find in relation to Goods in Custody?

Answer 14

Morris v Russell found that the Magistrate must be satisfied beyond a reasonable doubt that it is proper to entertain a reasonable suspicion that the goods were stolen or otherwise unlawfully obtained not that they were in fact stolen.

Question 15

What needs to be proved regarding “Knowledge”

Answer 15

In relation to “knowledge” all that needs to be proved is knowledge of the existence of the goods - not knowledge that the goods were stolen or unlawfully obtained.

It is a subjective test - can be established by admissions “it’s not mine”, conversations, and other circumstantial inferences such as attempt to dispose of

Question 16

Element 2 of the offence of Goods in Custody is “had a thing” — what is a “thing”

Answer 16

A thing is any tangible physical article of property.

What is alleged must be the specific thing that attracted the reasonable suspicion - cannot be the property that the “thing” has been converted into.

Question 17

Element 3 of the offence of Goods in Custody is “Custody” what does custody include?

Answer 17

There are 4 separate elements to “custody” - they are:

1. Personal/Manual custody - means immediate actual control.
2. Temporary custody - is when the property is given to another but is ultimately intended to be physically retaken - defendant must have intention of reclaiming property when apprehended.
3. Custody in Premises - is not an exclusive list - could be any place - includes vehicle
4. Give custody to another - when a person who had custody gives custody to another who is not entitled.

Question 18

Element 4 of Goods in Custody is “reasonably suspected of being stolen or otherwise unlawfully obtained”. What is required to be proved?

Answer 18

All that is required to be proved is a reasonable suspicion (attached to the goods, not the person) - does not require proof that the goods were in fact stolen/unlawfully obtained
- it is an objective test only - a reasonable suspicion based on facts which would create a reasonable suspicion in the mind of a reasonable man

Question 19

What did R v English find in relation to“reasonably suspected of being stolen or otherwise unlawfully obtained”.

Answer 19

R v English found court considers suspicion at the time the matter is in court. “It must be determined not according to the subjective beliefs of the police at the time but according to objective criterion determined by the court before whom the Accused stands charged”.

Question 20

What did R v Grace find in relation to“reasonably suspected of being stolen or otherwise unlawfully obtained”.

Answer 20

If suspicion changes to belief - does not go outside of the section.

Question 21

What should be included on a GIC indictment?

Answer 21

The property to which the suspicion is attached should be particularised.

When property is money, should include denominations in notes and coins, not amount

Can list many items including property belonging to defendant - convicted only on GIC.

Question 22

Explain the statutory defence at 527C (2)?

Answer 22

• . Defence must prove on the balance of probabilities.
• . Defence must prove that he or she had no grounds for suspecting goods were unlawfully in their possession.
• . Not enough to only claim that they did not hold their own suspicion - not subjective, objective only
• Not compulsory to prove this defence.

Question 23

Is there a double jeopardy risk with GIC offences?

Answer 23

Each type of “custody” is a separate offence with a separate third element.
An offence under 527C(1) cannot be amended in favour of another subsection - a fresh charge with the correct subsection would need to be laid (if within the statute). Evans v DPP
*Double jeopardy does not apply if charge under (1)(a) is dismissed and another is laid under (b) (c) or (d) - Evans v DPP

Question 24

Suspicion definition as per George v Rocket?

Answer 24

More than a mere idle wondering

Question 25

Can suspicion rely on Hearsay?

Answer 25

Yes. Tucs v Manley (Intelligence)

Question 26

In relation to Personal Custody 527C(1)(a)?

Answer 26

Custody is given it’s ordinary & plain meaning (dictionary meaning).
Personal Custody requires the Defendant to be able to exercise immediate actual control over the goods

R v English found “the Accused must be in possession of the goods at the time of apprehension (Custody & apprehension) - must be contemporaneous - caught red-handed - case relates specifically to subsection (a)

Question 27

What did the case of Sturdy v Katarzynski find in relation to
GIC?

Answer 27

“No regard is to be given to the purpose for which the defendant had the property on their premises, and that no regard is to be given to the intention of the defendant regarding the property”.

• This means that the court cannot take into account why a defendant might have property on a premises, or wha they intended to do with that property.

Question 28

What is a reasonable suspicion (as for Element 4 “reasonably suspected of being stolen”).

Answer 28

Suspicion is less than a belief. Reasonable person test. Objective test. The objective test is that a reasonable suspicion is a suspicion based on facts which would create a reasonable suspicion in the mind of a reasonable man.

If property is discovered during a lawful search, defendant is still liable if a reasonable suspicion attaches to the property found.

Question 29

Give an example that assists build reasonable suspicion?

Answer 29

Goods that are clearly owned by someone, but by another person, not the person whose custody they are in.

Could also be the circumstances in which the thing was found and the behaviour of the Accused.

The evidence and facts surrounding the finding must give rise to a reasonable and positive inference.

Question 30

What did R v Chan find regarding the acquittal of a larceny charge?

Answer 30

“An acquittal on a charge of larceny is not a bar to conviction upon the charge of unlawful possession”.