R v Burns

[2024] NSWLC 11

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 of Ex parte Miller, Re Hamilton (1934) 51 WN NSW 23 which held that where there has been a taking by Police for the purpose of testing in order to see whether a reasonable suspicion may or may not arise on the facts, then there has been no abandonment of possession so as to enable an accused to argue that the necessary suspicion and possession did not co - exist. In circumstances where the law has moved on since that time and the relevant suspicion is now that of the Magistrate at the hearing, His Honour held that Miller is now limited to what it decided, namely that “…goods do not cease to be in the custody of the accused simply because the police require him to hand them over”.

10. In an earlier case, R v Abbrederis (1981) 1 NSWLR 530, the CCA dealt with Commonwealth Customs legislation. Officials seized the accused’s luggage. The accused was arrested and charged relating to suspected heroin found in the luggage. The remainder of his luggage was retained and was sent for safe storage at the jail, where it was in the control of the Superintendent, not the accused. A few weeks later it was searched again, and more drugs were found. It was conceded that those goods were not in his possession on the later date because they were in the custody of a third person. The Court however found, due to the terms of the customs legislation, that the offence was nonetheless made out regardless of the finding as to lack of possession when the drugs were located, and the charge laid. Street CJ explained that the interpretation of the customs legislation was influenced by the need for example for officials to have time to test substances before being in a position to form suspicions and lay charges.

11. Abbrederis was mentioned by Gleeson CJ in English, but largely for the purpose of referring to Street CJ’s description of the history of legislation of this kind. A guide to the interpretation of s 527C is to be found in English, not Abbrederis.

12. It seems to me that the following flows from the authorities:

1. English is authority that at apprehension there must be custody.

2. This, however, assumes “apprehension” is apprehension for the offence (Clearly v Wilcocks).

3. The reasoning behind the requirement that at apprehension there must be custody applies equally to the time of the charging (English, following Cleary v Wilcocks).

4. Miller is authority that goods don’t cease to be in custody because Police require that they be handed over for a connected purpose such testing.

5. Miller is not authority for anything beyond that precise finding.

6. Goods do cease to be custody if they are being held by a third-party including Police, to the exclusion of the accused, for purposes such as safekeeping (Abbrederis), or because they have been lost (English) or because the Police are detaining the accused and thereby keeping him away from his goods (Kitchen).

13. Here Ms Burns was never “apprehended” for the offence prior to the charging, or at all. Therefore, the relevant time for assessing custody of the goods is at the time of charging the offender. The goods were not in custody of the accused at charging, because they had been seized by police at execution of the warrant, not for the purpose of testing nor for a purpose connected to the proposed laying of charges for having custody of the goods. This case is more analogous to factual cases like Abbrederis and Kitchen, where the Police had taken custody of the goods to the exclusion of the accused and, therefore, at the relevant time the offender was no longer in custody of them.

14. This result is a product of the legislative intention, expounded in English, that s527C retains its historical connotation, in relation to the element of custody, of being caught “red handed” (English at [280]). That Ms Burns may have been convicted of the offence had the Police searched the handbag on the side of the road or given it back after the search and then laid the charge (English at [279]), is not an answer to the finding that the authorities require.

15. I dismiss Sequence 1.

Sequence Two

16. Sequence 2 is straightforward.

17. The evidence is clear that Ms Burns was in custody of a laser pointer in a public place, i.e., in the street when she was arrested. The custody is proven by the evidence of the OIC of a chain of possession of the contents of the bag from when the offender was apprehended, to when the Police searched the bag. There is no temporal requirement for that charge that the Police must know about the elements of the offence at any particular time. For example, if Police saw someone holding such a device when reviewing CCTV recordings, nothing would prevent them from issuing a CAN at some future time.

18. The issues which arise on Sequence 1 are limited to cases where an element of the offence is the holding of a reasonable suspicion.

19. The offence is proven.

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Decision last updated: 10 February 2025