Perna v Police - [2007] SASC 306

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PERNA v POLICE
[2007] SASC 306
Judgment of The Honourable Chief Justice Doyle
21 August 2007
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - RECEIVING AND POSSESSION OF PROPERTY STOLEN OR REASONABLY SUSPECTED OF BEING STOLEN OR UNLAWFULLY OBTAINED - POSSESSION OF PROPERTY STOLEN OR SUSPECTED TO BE STOLEN OR UNLAWFULLY OBTAINED - POSSESSION, CUSTODY, ETC
Appeal against conviction recorded in Magistrates Court - whether Magistrate erred in finding appellant was in possession of goods.
Held: possession requires consideration of nature and extent of control of goods at relevant time - at relevant time, appellant had complete present personal physical control of property to exlusion of others - in the circumstances goods were under appellant's control - appeal dismissed.
Summary Offences Act 1953 (SA) s 41, referred to.
Moors v Burke (1919) 26 CLR 265; Williams v Douglas (1949) 78 CLR 521, applied.
Dib & Dib (1991) 52 A Crim R 64, distinguished.
Palumbo v O'Sullivan [1955] SASR 315; Hofstetter v Thomas [1968] VR 199; Beard v Brebner [1962] SASR 223; R v Van Swol [1975] VR 61, discussed.
Borrillo v Bartlett [1966] SASR 286; Brook v Whitebread [1966] SASR 310; The Queen v Boyce (1976) 15 SASR 40; He Kaw Teh v The Queen (1985) 157 CLR 523, considered.

PERNA v POLICE
[2007] SASC 306
Magistrates Appeal: Criminal

DOYLE CJ: Mr Perna was found guilty by a Magistrate of being in possession of property on 11 October 2005 which was reasonably suspected of having been stolen or obtained by unlawful means, contrary to s 41(1) of the Summary Offences Act 1953 (SA). The property consisted of kitchen appliances. I will refer to the property simply as the kitchen appliances. It comprised some dishwashers, range hoods, cook tops, ovens and a hotplate. The kitchen appliances were in a shed on property owned by another person.
Mr Perna appeals against the conviction. The appeal raises the question of whether the Magistrate erred in finding that Mr Perna was in possession of the kitchen appliances.
That in turn raises the question of the nature and extent of control over the kitchen appliances that was being exercised by Mr Perna at the relevant time, and that was required to support a finding that Mr Perna was in possession of the appliances.
Facts
I begin with some matters that are not in dispute. They can be treated as findings by the Magistrate.
On 11 October 2005 the police went to premises at Main North Road. The premises were occupied by Mr and Mrs Ward. They ran a car yard from the premises. There was a large shed at the rear of the premises. Access could be gained to the shed only by passing through the car yard.
Mr Perna had just driven a van into the premises, and had backed it just inside the shed through an open door. Mr Perna and Mr Ward were standing by the van, in or close to the shed.
Inside the van were a number of new kitchen appliances. They were of a similar kind to the kitchen appliances in question. Mr Perna pleaded guilty to having stolen the appliances in the van.
Inside the shed the police found the kitchen appliances. They were new. All or most of them were in boxes.
Also in the shed was a campervan, belonging to a friend of Mr Ward, and a number of items belonging to Mr Ward.
About six months before this day Mr Ward had agreed to allow Mr Perna to use the shed to store property, in return for a monthly payment of $50. Mr Perna did not have keys to the shed. He could get into the shed at any time during business hours, because the shed was routinely opened at the beginning of a working day and closed at the end of the day.
The shed was partitioned. Mr Stagg, under an arrangement with Mr Ward, used the other part of the shed for the purposes of his business as a car wholesaler. Mr Stagg had keys to both parts of the shed, and would open the part of the shed in which the kitchen appliances were found, if Mr Ward had not already done so.
Either Mr Ward or Mr Stagg opened the shed up each business day and closed it at the end of the day.
Having regard to the Magistrate’s brief reasons, and to her finding of guilt, I am satisfied that she must have made the following findings, and that those findings were able to be made on the evidence. I confine myself to findings that are relevant to the issue of possession.
The only keys to the shed were held by Mr and Mrs Ward and by Mr Stagg.
Mr Perna was entitled to have access to the shed during business hours, and to store goods there, under his arrangement with Mr Ward. Mr Perna had gone to the shed on a number of occasions, sometimes with another person. Mr Ward did not pay much attention to what Mr Perna was doing when he went to the shed.
The kitchen appliances in the shed were not there before Mr Ward agreed to allow Mr Perna to use the shed. They were new and were of a similar kind to those in the van.
Mr Perna was about to unload the items from the van into the shed.
Mr Perna had put some at least of the kitchen appliances into the shed. If some of them were put there by another person, that person had told Mr Ward that he was there on Mr Perna’s behalf. I do not accept the submission by Mr Coates, counsel for Mr Perna, that these findings were not open. The kitchen appliances were stolen during September 2005. Mr Ward’s evidence about when Mr Perna visited the premises was vague. However, it was open to the Magistrate to find that Mr Perna visited the shed during September.
Neither Mr or Mrs Ward nor Mr Stagg made any claim to the kitchen appliances in the shed, and had nothing to do with them being there.
Mr Ward would have allowed Mr Perna, and probably anyone claiming to have Mr Perna’s authority, to remove the kitchen appliances from the shed. Mr Ward would not have allowed the kitchen appliances to be removed other than by Mr Perna or someone claiming to act on his behalf.
Mr Perna in fact intended to exercise control over the kitchen appliances. If the issue arose he would have claimed the right to remove them, and the right to prevent another person from removing them.
Mr Ward was entitled to admit persons other than Mr Perna to the shed, and to allow other persons to use the shed. There was no evidence that anyone else was using the shed, except to the extent that Mr Ward had allowed a friend to store a campervan in the shed.
It is on these facts and findings that the question arises of whether it was open to the Magistrate to find that Mr Perna was in possession of the kitchen appliances on 11 October 2005, when the police came to the premises of Mr Ward.
Possession
The charge against Mr Perna was laid under s 41(1) of the Summary Offences Act. That section provides:
41 Unlawful possession of personal property
(1) A person who has possession of personal property which, either at the time of possession or at any subsequent time before the making of a complaint under this section in respect of the possession, is reasonably suspected of having been stolen or obtained by unlawful means, is guilty of an offence.
“Possession” in this provision has been construed in this State as having the same meaning as that term has in the statutes of other States that penalise possession, including statutes that refer to “actual possession”: see, for example, Palumbo v O’Sullivan [1955] SASR 315 at 319; Borrillo v Bartlett [1966] SASR 286 at 287; Brook v Whitebread [1966] SASR 310 at 313-315; The Queen v Boyce (1976) 15 SASR 40 at 44-45 and at 48. This is so despite the observation by the Full Court in Brook v Whitebread at 313 that “possession” might include forms of possession that might not be “actual possession”.
I will proceed on the basis that the approach taken in cases dealing with the meaning of “actual possession” is relevant to “possession” in s 41(1).
In Moors v Burke (1919) 26 CLR 265 the charge was laid under a provision that referred to “actual possession” of property suspected of being stolen or unlawfully obtained. Mr Moors was a customs officer. He had put some skeins of wool in a locker in a customs shed. Mr Moors was entitled to use the locker. But at least one other customs officer had access as of right to the locker. Mr Moors opened the locker at the request of Mr Burke. The Court held that, in the circumstances, the wool was not in the actual possession of Mr Moors.
In a passage which has often been cited, the High Court said at 274:
… “Having actual possession” means, in this enactment, simply having at the time, in actual fact and without the necessity of taking any further step, the complete present personal physical control of the property to the exclusion of others not acting in concert with the accused, and whether he has that control by having the property in his present manual custody, or by having it where he alone has the exclusive right or power to place his hands on it, and so have manual custody when he wishes. In its nature it corresponds to its companion expression “conveying”, which necessarily involves instant personal physical control to the exclusion of others. These two expressions are obviously intended to cover the whole ground of actual personal control - that is, whether the property is kept stationary or is in motion. But it does not include the case of a person who has put the property out of his present manual custody and deposited it in a place where any other person independently of him has an equal right and power of getting it, and so may prevent the first from ever getting manual custody in the future. In that event the property is not in his actual possession: it is where he may possibly reduce it again into actual possession, or, on the other hand, where the other person may himself reduce it into his own actual exclusive possession.
As can be seen, the Court identified two forms of control that would suffice. One was “present manual custody”. The other was having it in a place where the person in question “has the exclusive right or power to place his hands on it”. The Court held that the wool was not in the actual possession of Mr Moors, because another person had an equal right and power to open the locker and take out the wool.
Later cases support the view that the “exclusive right or power to place his hands on it”, to which the Court referred, is a general right, that may be subject to some qualifications. For example, a person may be in possession of stolen property, even though the true owner is legally entitled to demand the property from that person, if found with the property.
The later High Court decision of Williams v Douglas (1949) 78 CLR 521 indicates that Moors v Burke should not be interpreted too narrowly. There the defendant, while staying at a hotel, had hidden some gold bars in a bathroom. The bathroom was some distance from his bedroom and was used by other lodgers. A decision that he was in possession of the gold bars was upheld. The Court treated “possession” as meaning “actual possession”: at 526-527 in the reasons of the majority and in the separate reasons of Rich J. The majority said of actual or de facto possession at 527:
… It is wide enough to include any case where the person alleged to be in possession has hidden the thing effectively so that he can take it into his physical custody when he wishes and where others are unlikely to discover it except by accident. … It seems clear enough that whoever hid it there chose an effective hiding place and that when concealed there the gold was at his command. The fact that at some periods of the day the bathroom might be in use by other persons, so that for the time being the applicant could not obtain access to it, is unimportant. It is not as if he was entirely excluded from access to it for any lengthy period. Even if the applicant had not himself hidden it, it would be enough if an accomplice had done so with his knowledge, or after hiding it had communicated the hiding place to him for the purpose of enabling him to find the gold. …
To my mind there are two significant aspects of this decision. First, the fact that there were periods of time during which the defendant was not able to get access to the gold bars. Second, the fact that the Court assessed the defendant’s ability to take physical custody of the gold by reference to the fact that the gold was unlikely to be found by anyone else. As Rich J said in his separate concurring reasons, at 528, the defendant could have got the gold when he wished. He added:
He had it as effectually under his control or his de facto possession as if he had locked it in a box in the bathroom, a box of which he and he alone had the key, or if you like he and an accomplice alone had keys.
To my mind this case is authority for an approach under which the existence of an exclusive right or power to deal with property, the approach taken in Moors v Burke, is not necessarily determined exclusively in terms of legal rights, but is also determined by reference to what might be called the practical circumstances of the case.
In short, the issue of possession in the present case is to be determined by considering whether Mr Perna, at the relevant time, had immediate or “present” control over the appliances, and whether, in the relevant sense, that control was exclusive.
The decisions in Moors v Burke and Williams v Douglas remain authoritative: see He Kaw Teh v The Queen (1985) 157 CLR 523 at 538 Gibbs CJ; at 546 Mason J; at 560-561 Wilson J; at 585 Brennan J and at 599-600 Dawson J.
In the present case, there is no need to spend any time on the mental element of the offence in question. Having regard to the facts of the case, and to the Magistrate’s findings, the appeal can be decided on the basis that Mr Perna put some at least of the appliances in the shed, that he knew they were there, and on the basis that he intended at all times to assert a power of control over the appliances.
The issue in this appeal is whether Mr Perna, in the language of Moors v Burke, had “the complete present personal physical control of the property to the exclusion of others not acting in concert” with him.
Many cases have been decided over the years that deal with this issue, and that apply the law as stated in Moors v Burke and Williams v Douglas. The cases cover a range of situations. According to the factual situation, different aspects of the fact of control and the fact of exclusive control are emphasised. It suffices to refer to a small number of cases, each of which has an aspect relevant to the present appeal.
In Palumbo v O’Sullivan [1955] SASR 315 Mr Palumbo was charged with having in his possession a wrist watch which was reasonably suspected of having been stolen or unlawfully obtained. He was spoken to by police in a house at Norwood, where he had apparently stayed for the last two nights. He went with the police officer to a house some miles away. Mr Palumbo was a lodger there, the house being owned by another man. Mr Palumbo’s married sister and her two young children also lived in the house. There was a room in the house which Mr Palumbo occupied, but he shared this with the two small children. In that room was a wardrobe. In the wardrobe was a suit coat jacket, which Mr Palumbo said was his. In the pocket of the jacket the detective found the wrist watch. Mr Palumbo disclaimed all knowledge of the watch.
On these facts, the Magistrate had convicted Mr Palumbo. Mr Palumbo did not give evidence.
On appeal, the appeal was allowed and the conviction was set aside. It was set aside because, in the opinion of the Judge on appeal, it was a reasonable possibility that Mr Palumbo knew nothing about the watch. In the course of his reasons the Judge said that Mr Palumbo was in possession of the coat: at 321. He said it was debatable whether he was in possession of the coat while he was at Norwood, but that when he went to the other house, and showed the police officer his room, he was then at least in possession of the coat that was hanging in the wardrobe. It seems clear that if the Judge had thought that it was proven that Mr Palumbo knew the watch was in the pocket, he would have upheld the conviction.
For present purposes the significance of this decision is the fact that the Judge found that Mr Palumbo was in possession of the coat when he came to the second house, even if he was not in possession of it prior to that.
A similar approach was taken in the case of Hofstetter v Thomas [1968] VR 199. There the appellant was convicted of having in his possession a sum of money reasonably suspected of having been stolen or unlawfully obtained. The appellant was found by police to be in possession of a key to a safe deposit box. The appellant told the police that the box contained money. At the request of the police he agreed to show them the contents of the box. The appellant went with the police to the safe deposit premises. There the appellant was handed a metal box, having produced his key to the manager of the premises. The appellant opened the box and agreed to the police taking possession of the money. The safe deposit box was leased in the name of a company in which the appellant and his wife had controlling interests.
The Judge took the view (at 204) that before the appellant went to the safe deposit premises with the police, the money was “probably not” in his possession, because his wife also had a right of access to the box. In my respectful opinion that might be too narrow an approach, but for present purposes that can be put to one side. It can be put to one side because the Judge went on (at 205) to conclude that once the appellant had opened the box and taken physical custody of the money, he was then in “actual possession” of the money. The Judge referred with approval to the decision in Palumbo v O’Sullivan.
In Beard v Brebner [1962] SASR 223 the evidence showed that a speaker had been stolen from a cinema some years ago. Mr Beard was charged with having the speaker in his possession, it being reasonably suspected of having been stolen. The speaker was found in a carton with other property in a shed at the back of a house. The house was divided into flats. Mr Beard was the occupant of one of the flats. The shed was open on one side. All persons living at the house had access to the shed. Mr Beard admitted that he had put the speaker in the shed, together with other property belonging to him. He said it was his property, that he had had it for years, and that he had found it on a rubbish dump. The issue on appeal was whether possession was proved. It was an appeal against conviction.
The Judge was satisfied that Mr Beard intended to exercise control over the speaker: at 227. The issue was whether the evidence established that Mr Beard in fact had control over the speaker, or the power to exercise control over it, and whether he had control, or the power to control the speaker, to the exclusion of other persons. On that point the Judge said at 228 that four other adults resided at the premises and used the shed, in addition to Mr Beard’s wife.
The Judge referred to the decisions in Moors v Burke and in Williams v Douglas: at 228. The Judge said at 229:
In my view, the element of exclusiveness of control must be considered in the light of the probability or otherwise of interference by a third party. Where such interference by a third party is likely, then it may in an appropriate case be inferred that there is an equal right and power in that third party to get the property in question. Where, however, the property is hidden in a part of the premises to which third parties have the right of access, the element of exclusion remains because it is unlikely, as a matter of fact, that such third parties will interfere with the property. In the same way the nature of control does not cease to be exclusive merely because adequate safeguards are not taken to prevent theft or disturbance by a trespasser. Interference by thieves or trespassers is sufficiently unlikely not to disturb the exclusiveness of control by the person having apparent possession.
The Judge said that Mr Beard had had immediate physical control over the speaker when he brought it to the premises. He had placed the speaker “in a place of comparative safety”, indicating that he had no intention of abandoning his rights over the article. While others had the physical power to take the speaker, there was no likelihood in the circumstances that they would do so, and no suggestion that they had an equal right to do so. Accordingly, the Judge concluded at 229 that Mr Beard “had control over the speaker which was sufficiently exclusive”.

The significance of the decision for present purposes is the fact that the Judge decided the issue of control, and the exclusiveness of the control, by reference to the likelihood of interference by a third party with the speaker.
A similar approach was taken by the Full Court of the Supreme Court of Victoria in R v Van Swol [1975] VR 61. There the appellant was convicted of being in possession of a prohibited import, in the form of opium. The evidence supported a conclusion that the appellant had taken the opium to a house where he shared a room with his girlfriend. The evidence further supported the conclusion that the appellant had placed the opium in a tea chest belonging to his girlfriend, which was kept on a balcony to which they had access. The opium was under a quilt and some clothing. He was able to recover the opium at will from there. While the girlfriend of course had a right of access to the tea chest, on the evidence it was unlikely that she would discover it except by accident, and unlikely that she would take the opium. The tea chest had remained unpacked and uninspected for about two months. Once again, the Court referred to the decisions in Moors v Burke and in Williams v Douglas. The Court said (at 66) that the difference in outcome in the two cases was attributable mainly to the fact that in Williams v Douglas the evidence supported a conclusion that the defendant had concealed the gold:
… in such circumstances as to keep it effectively within his control because others were unlikely to discover it except by accident.
Such an inference could not be drawn in Moors v Burke: at 66. The Court went on to say that on the evidence it had been open to the jury to find that Mr Van Swol had possession of the opium, because he had hidden it in a manner that kept it effectively within his control.
Dib & Dib (1991) 52 A Crim R 64 is a case in which heroin was found in premises occupied by the appellants and their children, on top of a refrigerator. At the time the heroin was found the appellant’s adult daughter was also on the premises. She had heroin concealed on her person. Other persons were in the premises at the time. The Court held that the Judge had erroneously directed the jury on the concept of possession, but in the end dismissed the appeal. The case turns on its own facts. However, I refer to this decision because Mr Coates (appearing for Mr Perna) relied upon it. In the course of his reasons Hunt J said at 67:
Where (as in the present case) the Crown seeks to establish an accused's possession of property found not within his manual possession but rather in premises to which he has access, it must - in order to establish beyond reasonable doubt that it was the accused rather than anyone else who had such possession of that property - persuade the jury that the accused has the legal right to exclude all persons from the premises in which the property is situated (other than those acting in concert with him). In a case where two or more accused are alleged to be in joint possession of the property, the Crown must establish that they all had that legal right.
Not surprisingly, Mr Coates submits that this statement of the law supports his argument.
Disposition of appeal
In my opinion the Magistrate’s decision can be supported on two bases.
The first basis is a relatively narrow one.
When the police went to Mr Ward’s premises on 11 October 2005, the day of the alleged offence, the shed was open. Mr Perna was inside the shed, talking to Mr Ward. At that time Mr Perna had the ability to take access to the appliances. Mr Ward would have permitted him to remove them if he wished. The appliances were not out of Mr Perna’s control. At that time, drawing on language used in Moors v Burke, Mr Perna had “complete present personal physical control of the property to the exclusion of others”. He was contractually entitled to remove the goods if he wished to do so, and it is apparent from the facts that Mr Ward would not have stopped him doing so. On the evidence Mr Ward made no claim over the appliances, and would have respected Mr Perna’s claim to them. While it might not be correct to describe the appliances as in Mr Perna’s “present manual custody”, they were as much under his control at that time as their nature permitted, because they were in a place to which he had access, from which he could remove them, and no other person at that time claimed a right equal to that of Mr Perna over the appliances.
Even if, before Mr Perna arrived at Mr Ward’s premises, Mr Perna was not in possession of the appliances, he was in possession of them at the relevant time on 11 October 2005. In that respect the case is analogous to the decisions in Palumbo v O’Sullivan and in Hofstetter v Thomas.
On that relatively narrow basis the Magistrate correctly found that Mr Perna was in possession of the appliances.
The Magistrate’s decision can be supported on a broader basis.
The appliances were stored in a shed to which Mr Perna had a contractual right of access during business hours. The decision in Williams v Douglas demonstrates that the decision in Moors v Burke does not mean that a person cannot be in possession of items that are in premises to which the person in question does not have an unrestricted right of access. In Williams v Douglas the defendant was a mere lodger, and his entitlement to enter the hotel bathroom was not unlimited. The decision in Williams v Douglas also demonstrates that a person can be in possession of an item that is in a place to which other persons have rights of access.
For present purposes it is significant that Mr Perna had a contractual right of access to the shed, at least during business hours. None of the other persons who had a right of access to the shed, Mr Ward, Mrs Ward and Mr Stagg, asserted any claim to the appliances. It is clear that they would have respected Mr Perna’s claim to the appliances. While Mr Ward could admit others to the shed, and could use the shed himself, the evidence supports the conclusion that he would not authorise other persons to act contrary to Mr Perna’s claim in respect of the appliances.
In Williams v Douglas the gold bars were hidden in a manner that enabled the defendant to take them into his physical custody when he wished (subject to being able to get access to the bathroom) and in a manner that made it unlikely that others would take the gold bars. The contractual arrangement between Mr Perna and Mr Ward gave Mr Perna a right to take access to the appliances over a wide range of hours, and made it unlikely that any other person would deal with the appliances.
The present case has analogies to the decisions in Beard v Brebner and in R v Van Swol. The analogy is that in the present case, as in those cases, it was unlikely as a matter of fact that any third party would interfere with the appliances.
I emphasise that in making that point I do not suggest that a finding of possession can be based merely on a finding that interference by others with the relevant property is unlikely. It is significant that in the present case Mr Perna did have contractual rights of access to the appliances, and that neither Mr nor Mrs Ward nor Mr Stagg had equal rights and power over the appliances. Mr and Mrs Ward were contractually obliged to grant access to Mr Perna, at least in business hours, and to respect his rights over the appliances. There is no reason to think that Mr Stagg would interfere with the appliances, or would consider that he was entitled to do so.
In short, when one considers the contractual rights that Mr Perna had, the contractual obligations of Mr and Mrs Ward, and the absence of any likelihood that any third person would interfere with the appliances, one is led to the conclusion that the appliances were effectively under Mr Perna’s control, at least during business hours when he was entitled to have access to the shed, and probably outside business hours.
As I mentioned earlier in my reasons, Mr Coates relies on the statement of law by Hunt J in his reasons in Dib & Dib. In my respectful opinion what Hunt J said is too narrow to stand as a general proposition, although it was appropriate to the circumstances of the case. For example, the law as stated by Hunt J is inconsistent with the decision of the High Court in Williams v Douglas, and is inconsistent with other decisions dealing with lodgers.
In the end, each case turns on its particular circumstances, it being necessary to consider those circumstances in light of the statement of principle found in the High Court decisions. I am satisfied that the Magistrate’s decision in the present case is correct.
For those reasons I would dismiss the appeal.