Kelly v Tepper

This matter concerns an application for special leave to appeal to the High Court of Australia. The applicant, Kelly, sought leave to appeal against a decision concerning the offence of unlawful possession, also known as goods in custody in other Australian jurisdictions. The offence is considered serious due to the potential for imprisonment and its characteristic reverse onus of proof.

The central legal issue before the High Court was whether the prerequisite elements of the unlawful possession offence, which trigger the reverse onus of proof, must be proven beyond reasonable doubt. Specifically, the court was asked to consider if the standard of proof applied to the reasonableness of a suspicion, as distinct from the existence of the suspicion or the grounds for it, needed to meet this high standard.

The applicant argued that Australian courts have consistently construed provisions like this strictly, requiring proof of the initial elements beyond reasonable doubt before the reverse onus operates. They relied on cases such as *Patmoy's* case, *Wallace v Hansberry*, and *Reg v Tween* as establishing a "time-honoured formula" for this standard of proof. While acknowledging that no prior case had directly addressed the standard of proof for the "reasonableness" of a suspicion, the applicant contended that this was the direct implication of the established construction of such provisions. They drew an analogy to similar requirements in the *Customs Act*, where proof of reasonable suspicion is typically directed to juries as needing to be sustained beyond reasonable doubt.