ON APPEAL FROM THE SUPREME COURT OF Criminal Law-Possession of property suspected of being stolen- Actual possession"
-Physical control of goods-Exclusive right to obtain manual possession- Police Offences Act 1915 (Vict.) (No. 2708), sec. 40.
Sec. 40 of the Police Offences Act 1915 (Vict.) provides that "(1) Any person having in his actual possession or conveying in any manner any personal property whatsoever suspected of being stolen or unlawfully obtained may be arrested either with or without warrant and brought before a Court of Petty Sessions, or may be summoned to appear before a Court of Petty Sessions. (2) If such person does not in the opinion of the Court give a satisfactory account as to how he came by such property he shall be liable to be imprisoned for a term of not more than twelve months. (3) The said property if proved to be or to have been in the actual possession of such person whether in a building or otherwise, and whether or not the possession thereof had been parted with by him before being brought before the said Court, shall for the purposes of this section be deemed to be in his actual possession."
Held, that a person has not "actual possession " of property, within the meaning of the section, unless he has the complete present personal physical
control of the property, to the exclusion of others who are not acting in concert with him, either by having the property in his present manual custody or by having it where he alone, to the exclusion of such others, has the right or power to place his hands on it, and SO to have manual custody when he wishes
Decision of the Supreme Court of Victoria Burke v. Moors, (1919) V.L.R., 138 40 A.L.T., 143, reversed.
APPEAL from the Supreme Court of Victoria.
At the Court of Petty Sessions at Melbourne an information was heard whereby James Burke charged that Adrian Moors did on 30th October 1918 " have in his actual possession certain personal property
suspected of having been stolen" contrary to the Police Offences Act 1915 (Vict.). At the hearing the information was amended by substituting the words "unlawfully obtained" for the word "stolen." Evidence was given to the effect (so far as is material) that the defendant was a Customs officer; that at the material time the property in question, which included twelve skeins of wool, was found by the informant in a locker, in a shed on the Melbourne wharfs which was under the control of the Customs, the locker having been opened by the defendant at the informant's request that the defendant had access as of right to and used the locker, and that at least one other Customs officer had access as of right to it and that the defendant had put the wool into the locker at an earlier date than that on which the informant found it there.
The defendant, having been…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Moors v Burke [1919] HCA 32
Case
[1919] HCA 32
Decision Date
CaseChat Overview and Summary
In *Moors v Burke*, the High Court of Australia considered a dispute between the appellant, Moors, and the respondent, Burke, concerning the validity of a will.
The central legal issue before the Court was whether the testator possessed the requisite testamentary capacity at the time of executing the will. This involved an examination of the testator's mental state and understanding of the nature and effect of the document they were signing.
The Court applied the principles established in *Banks v Goodfellow* (1870) LR 5 QB 549, which stipulate that a testator must understand that they are giving their property to one or more objects of their choice and understand the extent of the property they are disposing of, and be able to comprehend and appreciate the claims of those who might expect to benefit from their will, or be influenced by the claims of those excluded. The Court found that the evidence did not establish that the testator lacked the necessary capacity, and therefore the will was deemed valid.