R v Burns

Local Court

New South Wales

Medium Neutral Citation:

R v Burns [2024] NSWLC 11

Hearing dates:

22 April 2024

Date of orders:

14 May 2024

Decision date:

08 May 2024

Jurisdiction:

Criminal

Before:

Brender LCM

Decision:

Sequence 1 is dismissed; Sequence 2 is proven.

Legislation Cited:

Crimes Act 1900 (NSW)

Summary Offences Act 1988 (NSW)

Cases Cited:

Kitchen v Cox (1996) 85 A Crim R 328

R v English (1989) 44 A Crim R 273

Ex parteMiller, Re Hamilton (1934) 51 WN NSW 23

R v Abbrederis (1981) 1 NSWLR 530

Cleary v Wilcocks [1946] 63 WN (NSW) 101

Texts Cited:

Nil.

Category:

Principal judgment

Parties:

Melanie Burns (Defendant)

NSW Police (Prosecutor)

Representation:

Counsel:

Michael Valentin (Defendant)

NSW Police (Prosecutor)

File Number(s):

2023/00278026

Publication restriction:

Nil.

JUDGMENT

1. Ms Burns was arrested on a warrant on 31 August 2024. She was in the street. She was known to Police.

2. Her person was searched. Her handbag was not immediately searched.

3. After being arrested, the offender was taken to the local Police station.

4. At some point, while being at the station, Police discovered in the offender’s bag goods that they suspected of being stolen. Consequently, Ms Burns was charged under s 527C Crimes Act 1900 (NSW) of having goods in custody reasonably suspected of being stolen or unlawfully obtained. This is sequence one.

5. Police also found a laser pointer in the offender’s possessions. The offender was subsequently charged with being in custody of that (laser pointer) in a public place in accordance with s 11FA Summary Offences Act 1988 (NSW). This is sequence two.

Sequence One

6. At about 4:20pm, Ms Burns had custody of the goods in her bag. At that time, the Police removed the goods from her direct custody. It was at approximately that time that the offender was arrested by Police on the warrant. Later, the Police discovered the goods after searching the offender’s handbag. They formed the relevant suspicion that they were stolen or unlawfully obtained and subsequently charged the offender with the sequence one offence.

7. The defence submitted that the accused did not have custody of the goods at that later time, and that fact, therefore, mandates acquittal.

8. The defence pointed to cases such as Kitchen v Cox (1996) 85 A Crim R 328, in which a Victorian court acquitted the accused because it held that the accused was not in possession of goods where at the time the suspicion was formed about goods in a car, the accused had already been arrested, handcuffed, and placed in the police vehicle. The language in the relevant statute was: “Any person having in his actual possession or conveying in any manner any personal property whatsoever reasonably suspected of being stolen…may be arrested…”.

9. The position in NSW appears to be the same. In R v English (1989) 44 A Crim R 273, Gleeson CJ held that s 527C requires that at the moment of apprehension the accused must be in custody of the goods. His Honour referred to the decision…