Michael Rodney SWANSBOROUGH v John Andrew Giles

[2008] ACTSC 127

REBECCA SWANSBOROUGH v JOHN ANDREW GILES and
MICHAEL RODNEY SWANSBOROUGH v JOHN ANDREW GILES
[2008] ACTSC 127 (18 November 2008)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 75 of 2008
No. SCA 76 of 2008

Judge:             Higgins CJ
Supreme Court of the ACT

Date:              18 November 2008

IN THE SUPREME COURT OF THE       )
  )          No. SCA 75 of 2008
AUSTRALIAN CAPITAL TERRITORY    )          No. SCA 76 of 2008

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:REBECCA ANNE SWANSBOROUGH

Appellant

AND:JOHN ANDREW GILES

Respondent

AND:

BETWEEN:MICHAEL RODNEY SWANSBOROUGH

Appellant

AND:JOHN ANDREW GILES

Respondent

ORDER

Judge:  Higgins CJ
Date:  18 November 2008
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. The convictions and sentences imposed be confirmed.

1. In this matter the appellants were charged with an offence under section 324(1) of the Criminal Code 2002 (ACT). That offence, as I have already noted, is an offence which is a summary offence of unlawful possession of stolen property. It is a successor to the previously well‑known offence of having goods in custody reasonably suspected of being stolen.

1. Consistently with the Explanatory Memorandum which referred to the creation of this particular section, a person commits an offence if, first, that person has property in their possession - I leave aside the other qualifications in respect of that where property is in someone else’s possession but they know of it and have placed it there - and has property in or on any premises, whether or not the premises are occupied or belong to the person alleged to be in possession of the property.  In this case, her Honour found that the place where the property was located was such as to raise an inference which her Honour was entitled to accept, that the appellants were in possession of the property that was there found, that is to say at the house and at the business premises. 

1. So for the appellants to assert, or for them to resist the inference that they knew it was there would be almost impossible, and indeed the only submission put is that possession for the purposes of s 324 would have to be possession knowing the tainted character of the property.  That was not the intention of the section; the intention of the section was simply to say that if the property is in possession of a person and the property is objectively such as to be reasonably suspected of being stolen property, then the offence is committed. 

1. The section expressly applies absolute liability to the status of the property.  In this case there was no possible contradiction of the presence of those two elements.  Of course, one may rely on a defence, provided for in s 324(3), and that defence requires, as was intended, for a person to whom the section applies to prove that they had no reasonable grounds for suspecting the property concerned was stolen property or otherwise unlawfully obtained. 

1. Her Honour reviewed the evidence that related to the goods that were in fact so found and noted a number of suspicious matters concerning those goods which led her to conclude that it was not only reasonable to suspect the goods were stolen but that it was unreasonable for the appellants to suppose that there were no reasonable grounds to suspect that the goods were stolen. To that, of course, would have to be added the evidence of Ms Paff which strongly supported that conclusion.  So it is no wonder that her Honour was not satisfied that the defence under s 324(3) was made out, even though it only needed to be made out on the balance of probabilities. 

1. For those reasons it seems to me her Honour was correct to find, and it was not only open to her Honour to find, but she was correct to find, that the offence was made out in respect of each of the two appellants.  In those circumstances, I would dismiss the appeal and confirm the convictions and sentences imposed, which, as I have already remarked, were certainly lenient for what would on the face of it seem to have been the conduct of a business which involved the receipt of stolen goods.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date:    18 November 2008

Counsel for the appellants:  Ms T Warwick
Solicitor for the appellants:  Steven Stubbs, Solicitor
Counsel for the respondent:  Mr J Lundy
Solicitor for the respondent:  Director of Public Prosecutions for the ACT
Date of hearing:  18 November 2008
Date of judgment:  18 November 2008