Citation: R v Burns [2024] NSWLC 11
Court: Local Court of NSW
Date: 08 May 2024
Judge(s): Brender LCM
Background
The accused was arrested on a warrant in a public street and was known to police. At the time of arrest, police did not immediately search her handbag. She was taken to the local police station, where officers later searched the bag and found goods they suspected were stolen or unlawfully obtained.
As a result of that search, the accused was charged on two counts. The first count (Sequence 1) alleged she had goods in custody reasonably suspected of being stolen or unlawfully obtained, contrary to section 527C of the Crimes Act 1900 (NSW). The second count (Sequence 2) alleged she had custody of a laser pointer in a public place, contrary to section 11FA of the Summary Offences Act 1988 (NSW).
The central dispute on Sequence 1 was whether the accused could be found to have had custody of the suspected goods at the legally relevant time, given that police had already taken control of the bag before forming any suspicion about its contents.
Legal Issues
- Whether the accused was "in custody" of the suspected goods at the legally relevant time for the purposes of section 527C of the Crimes Act 1900 (NSW)
- Whether the relevant time for assessing custody under section 527C is the moment of apprehension for that offence or the moment of charging
- Whether the laser pointer charge under section 11FA of the Summary Offences Act 1988 (NSW) was made out on the evidence
Decision
Issue 1: Custody of suspected goods under section 527C (Sequence 1)
Brender LCM reviewed the leading authorities on section 527C. In R v English, Gleeson CJ held that the section requires the accused to be in custody of the goods at the moment of apprehension, preserving the historical notion of being caught "red-handed" (at [9], [14]). The exception recognised in Ex parte Miller is narrow: goods do not cease to be in the accused's custody merely because police require them to be handed over temporarily for testing purposes (at [9]).
Because the accused was never formally apprehended for the Sequence 1 offence, the magistrate held that the relevant time for assessing custody shifted to the moment of charging (at [13]). At that point, police had already seized the handbag at the execution of the warrant, for reasons unconnected to any suspected possession of stolen goods. The situation was therefore analogous to cases such as Kitchen v Cox and R v Abbrederis, where police had taken exclusive custody of the goods before the relevant suspicion arose (at [13]). The charge was dismissed (at [15]).
Issue 2: Laser pointer in a public place under section 11FA (Sequence 2)
The evidence established a continuous chain of custody from the moment the accused was arrested in the street to when police searched the bag at the station (at [17]). The accused had custody of the laser pointer in a public place at the time of arrest. Unlike section 527C, section 11FA contains no requirement that police be aware of the relevant elements at any particular moment (at [17]-[18]). The charge was proven (at [19]).
Orders Made
- Sequence 1 (goods suspected of being stolen or unlawfully obtained, s 527C Crimes Act 1900) is dismissed.
- Sequence 2 (laser pointer in a public place, s 11FA Summary Offences Act 1988) is proven.
Key Takeaways
- Under section 527C of the Crimes Act 1900 (NSW), the element of custody must exist at the moment of apprehension for that offence, or at the moment of charging where no such apprehension has occurred; the section retains its historical character of requiring the accused to be caught "red-handed" (at [9], [14]).
- The narrow exception from Ex parte Miller applies only where police temporarily require the accused to hand over goods for testing purposes connected to forming the suspicion; it does not extend to situations where police have seized property for an entirely unrelated purpose (at [9], [13]).
- Where police take exclusive control of goods before forming any suspicion that they are stolen, the accused is no longer in custody of those goods at the legally relevant time, and a charge under section 527C cannot be sustained (at [13]).
- Section 11FA of the Summary Offences Act 1988 (NSW) contains no requirement that police form awareness of the prohibited item at any particular moment; custody of the item in a public place at the time of arrest is sufficient, and the charge may be laid at a later point (at [17]-[18]).
- The temporal coincidence problem that defeated Sequence 1 is specific to offences where "holding a reasonable suspicion" is an element; it does not affect straightforward possession-based offences where no such suspicion element exists (at [18]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Summary Offences Act 1988 (NSW)
Cases
- Kitchen v Cox (1996) 85 A Crim R 328
- R v English (1989) 44 A Crim R 273
- Ex parte Miller, Re Hamilton (1934) 51 WN NSW 23
- R v Abbrederis (1981) 1 NSWLR 530
- Cleary v Wilcocks [1946] 63 WN (NSW) 101