Goods In Custody - s527C

Published by Geoff Harrison | 28 July 2024

Section 527C of the Crimes Act 1900, which is often referred to as 'goods in custody', contains four offences within one section:

• where the property is on the accused's person (see R v English 17 NSWLR 149 below re time of custody),

• where the property is being held by another person,

• where the property is in or on premises; and

• where the accused gives possession of the property to a person who is not lawfully entitled,

where the property may reasonably be suspected of being stolen or otherwise unlawfully obtained. Hence, the suspicion must attach to the property, not the person (O'Sullivan v Tregaskis [1948] SASR 12). It is at the time of hearing that the magisrate is to decide whether any suspicion attaches to the goods and hearsay evidence can be relied upon to support such a suspicion: Tucs v Manley (1985) 62 ALR 460. As to what amounts to reasonable suspicion see R v Rondo at [53].

Money can be the subject of this charge (see R v Chan (1992) 28 NSWLR 421 below), for example, the proceeds of drug supply. However, police are more likely to charge under s193C of the Crimes Act, i.e., property suspected of being the proceeds of crime.

It is not an overly high bar for the prosecution to prove this offence, as the prosecution need only prove beyond a reasonable doubt that the goods are reasonably suspected of being stolen or otherwise unlawfully obtained. The maximum penalty is 6 months imprisonment or a fine of 5 penalty units ($550) however, if the property is a motor vehicle, the maximum penalty is 12 months imprisonment or a fine of 10 penalty units ($1100). Given that this is a summary offence, police have up to 6 months to commence proceedings. Police are also able to issue a Criminal Infringement Notice for this offence as per item 2, Schedule 4 of the Criminal Procedure Regulations 2017, which is currently $350.

The statutory defence under s527C(2) requires that the accused prove on the balance of probabilities that he or she had no reasonable grounds for suspecting that the thing referred to in the charge was stolen or otherwise unlawfully obtained.

Other Sources:

• Penalty Notice Offence

• Goods in Custody Discussion Paper, 2013 by Mark Dennis, Barrister

Cases:

• Evans v Dpp [2000] NSWSC 1005

• R v Rondo [2001] NSWCCA 540

• George v Rockett [1990] HCA 26

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Extracted Legislation:

CRIMES ACT 1900 - SECT 527C

Persons unlawfully in possession of property

(1) Any person who--

(a) has any thing in his or her custody,

(b) has any thing in the custody of another person,

(c) has any thing in or on premises, whether belonging to or occupied by himself or herself or not, or whether that thing is there for his or her own use or the use of another, or

(d) gives custody of any thing to a person who is not lawfully entitled to possession of the thing,

which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, is liable on conviction before the Local Court--

(a) if the thing is a motor vehicle or a motor vehicle part, or a vessel or a vessel part, to imprisonment for 1 year, or to a fine of 10 penalty units, or both, or

(b) in the case of any other thing, to imprisonment for 6 months, or to a fine of 5 penalty units, or both.

(1A) A prosecution for an offence under subsection (1) involving the giving of custody of a motor vehicle to a person who is not lawfully entitled to possession of the motor vehicle may be commenced at any time within 2 years after the date of commission of the offence.

(2) It is a sufficient defence to a prosecution for an offence under subsection (1) if the defendant satisfies the court that he or she had no reasonable grounds for suspecting that the thing referred to in the charge was stolen or otherwise unlawfully obtained.

(3) In this section--

"motor vehicle" has the same meaning as it has in Division 5A of Part 4.

"premises" includes any structure, building, vehicle, vessel or place, whether built on or not, and any part of any such structure, building, vehicle, vessel or place.

"vessel" means a vessel within the meaning of the Marine Safety Act 1998 .

CRIMINAL PROCEDURE ACT 1986 - SECT 179

Time limit for commencement of summary proceedings

(1) Proceedings for a summary offence must be commenced not later than 6 months from when the offence was alleged to have been committed.

(2) Subsection (1) does not apply--

(a) to an offence for which an Act or law specifies another period within which proceedings must be commenced, or

(b) to an indictable offence that is being dealt with summarily, or

(c) to an offence involving the death of a person that is or has been the subject of a coronial inquest, or

(d) to a back up summary offence if the District Court determines an appeal against a conviction or finding of guilt by the Children's Court or Local Court for the related indictable offence by setting aside the conviction or finding of guilt.

(3) Proceedings for a summary offence that relate to the death of a person that is or has been the subject of a coronial inquest must be commenced--

(a) not later than 6 months after the conclusion of the inquest, or

(b) not later than 2 years from when the offence is alleged to have been committed,

whichever occurs first.

(4) Proceedings for a back up summary offence must be commenced not later than 6 months after the District Court determines an appeal against the conviction or finding of guilt by the Children's Court or Local Court for the related indictable offence by setting aside the conviction or finding of guilt.

(5) In this section, a summary offence is a

"back up summary offence" if a charge for the summary offence was laid against a person but was withdrawn or dismissed after the person was convicted or found guilty of an indictable offence (the

"related indictable offence" ) by the Children's Court or Local Court on the basis of the same facts.

Definitions:

"indictable offence" means an offence (including a common law offence) that may be prosecuted on indictment.

"summary offence" means an offence that is not an indictable offence.

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R V ENGLISH

Court of Criminal Appeal: Gleeson CJ, Enderby and McInerney JJ

19 July, 7 September 1989

Criminal Law — Particular offences — Goods in custody reasonably suspected of being stolen — Whether accused should have goods in his custody when apprehended — Crimes Act 1900, s 527C(1)(a).

Held: The Crimes Act 1900, s 527C(1)(a), which provides for the offence of having goods “in custody ... reasonably suspected of being stolen”, requires that at the time that a person is apprehended for an offence under that section that that person must have custody of the goods in question. (156F)

R v Abbrederis [1981] 1 NSWLR 530; Ex parte Patmoy; Re Jack (1944) 44 SR (NSW) 351; (1944) 61 WN (NSW) 228; Cleary v Wilcocks (1946) 63 WN (NSW) 101 and Ex parte Miller; Re Hamilton (1934) 51 WN (NSW) 23, considered.

Accordingly, where a person had previously been in possession of bank notes which were lost and were not in that person’s custody when apprehended or charged, the section did not apply.

CASES CITED

The following cases are cited in the judgments:Cleary v Hammond [1976] 1 NSWLR 111.Cleary v Wilcocks (1946) 63 WN (NSW) 101.Meyer Heine Pty Ltd v China Navigation Co Ltd (1966) 115 CLR 10. Miller, Ex parte; Re Hamilton (1934) 51 WN (NSW) 23.

Patmoy, Ex parte; Re Jack (1944) 44 SR (NSW) 351; 61 WN (NSW) 228.

R v Abbrederis [1981] 1 NSWLR 530. E

STATED CASE

This was the hearing of a case stated by Shadbolt DCJ in the District Court pursuant to the Criminal Appeal Act 1912, s 5B, in relation to a point of law arising under the Crimes Act 1900, s 527C(1)(a).

P I Lakatos, for the appellant.

R N Howie QC, for the respondent.

7 September 1989

Cur adv vult

GLEESON CJ. This matter comes before this Court by way of a case stated by his Honour Judge Shadbolt in the District Court pursuant to the provisions of the Criminal Appeal Act 1912, s 5B. His Honour had before him an appeal from a decision of a magistrate who had convicted Janelle English (the appellant) of an offence under the provisions of the Crimes Act 1900, s 527C(1)(a), and fined her the sum of $400.

The appellant had been charged that she on 10 October 1986 at Roseville in the State of New South Wales did have in her custody $1,540 in Australian bank notes which may be reasonably suspected of being stolen or otherwise unlawfully obtained. The circumstances giving rise to the charge and conviction may be summarised as follows. On 10 October 1986, a Mr Kokubun found, in a street outside his house, a handbag. It seems to have been common ground that the appellant was the owner of the handbag. At the time it was found by Mr Kokubun the handbag contained $1,540 in cash and a quantity of cannabis. The cannabis is irrelevant to these proceedings.On the morning of 11 October, Mr Kokubun took the handbag to a police station, and the handbag was found to contain documents from which the identity of the appellant was established. In due course the police contacted the appellant and she attended the police station on 18 October. She gave somewhat conflicting information about how she came to be separated from the handbag on 10 October, saying at one stage that it was stolen and at another stage that she had lost it. Her account of how the money came to be in the handbag was evidently unconvincing. In any event, she was charged as mentioned above and ultimately, in March 1987, convicted.

On the appeal to Shadbolt DCJ, the primary submission advanced on behalf of the appellant was that at the time she was apprehended, that is to say, 18 October 1986, and when she was charged, the bank notes in question were no longer in her custody. The terms of the charge, it is to be noted, were that the appellant had the bank notes in her custody on 10 October 1986 and, as I understand the facts, there was no dispute that for at least part of that day the notes were in the appellant’s custody. The argument, however, was that the goods ceased to be in her custody on that day and that it was not open to the police, when she was apprehended some eight days later, to charge her in respect of her custody on 10 October 1986. The point of the argument is expressed in the question asked in the case stated by the learned judge, who indicated a disposition to agree with the argument. The question asked in the case stated is as follows:

“Does s 527C(1)(a) of the Crimes Act 1900 require that at the time that a person is apprehended for an offence under that section that that person must have custody of the goods in question?”

Another way of expressing the appellant’s submission can be seen from the language of Shadbolt DCJ in his statement of his own views of the law. His Honour, after reviewing certain authorities, said:

“In the light of these authorities, it appears to me that the section looks to custody in a real sense at the time of apprehension and charge, and not before. It is still the handling of stolen goods in circumstances which provide proof falling short of that required to provide larceny or receiving at which the section strikes. What distinguishes this section with its denial of trial by jury, reversal of the onus of proof and its requirement for mere custody, from stealing and receiving must in the end be its intention which was to provide a summary offence for those in whose present custody are goods, the origin and ownership of which lies in doubt and excites suspicion.”

Section 527C is in the following terms:

“(1) Any person who—

(a) has any thing in his custody;

(b) has any thing in the custody of another person;

(c) has any thing in or on premises, whether belonging to or occupied by himself or not, or whether that thing is there for his own use or the use of another; or

(d) gives custody of any thing to a person who is not lawfully entitled to possession of the thing,

which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, shall be liable on conviction before a stipendiary magistrate to imprisonment for six months, or to a fine of $500.

(2) It is a sufficient defence to a prosecution for an offence under subs (1) if the defendant satisfies the court that he had no reasonable grounds for suspecting that the thing referred to in the charge was stolen or otherwise unlawfully obtained.

(3) In this section, ‘premises’ includes any structure, building, vehicle, vessel, whether decked or undecked, or place, whether built upon or not, and any part thereof.”

That section was included in the Crimes Act upon the repeal in 1979 of the Summary Offences Act 1970 and is in substantially the same form as the provision which had appeared in the Summary Offences Act 1970. That provision in turn had a long history. The offence known as “goods in custody” appeared as s 1 in the Act 19 Victoria No 24, which was enacted in 1855, and was described in its long title as “an Act to make further Police Regulations for the City Port, and Hamlets of Sydney and Other Towns and Places in the Colony of New South Wales”. Section 1 of that Act was as follows:

“Every person who shall be brought before any Justice of the Peace charged with having in his possession or conveying in any manner anything which may be reasonably suspected of being stolen or unlawfully obtained and who shall not give an account to the satisfaction of such Justice how he came by the same shall be deemed guilty of a misdemeanor.”

Offences Act 1901.

That section was re-enacted in substantially the same form in the Police

In 1908 the section was amended to read as follows:

“27. Whosoever being charged before a Justice with —

(a)  having anything in his custody; or

(b)  knowingly having anything in the custody of another person; or

(c) knowingly having anything in a house, building, lodging, apartment, field, or other place, whether belonging to or occupied by himself or not, or whether such thing is there had, or placed for his own use or the use of another, which thing may be reasonably suspected of being stolen or unlawfully obtained and who shall not give an account to the satisfaction of such Justice how he came by the same shall be deemed guilty of misdemeanour.

Section 27 was replaced in 1970 by s 40 of the Summary Offences Act which, as has been said, was in substantially the same terms as the present s 527C of the Crimes Act. It is to be noted that two particular changes were made when s 27 of the Police Offences Act 1901 became s 40 of the Summary Offences Act 1970. First, the words “whosoever being charged before a Justice with” were replaced by the words “a person who”. Secondly, a new provision, par (d), was added which related to the situation where a person who had once been in custody of the goods in question had given custody to another person who was not lawfully entitled to their possession. Further, the provision concerning the giving of an account to the Justice of how the person charged came into possession of the goods was placed into a separate subsection creating a defence. The Minister who introduced the Summary Offences Bill into the Legislative Assembly in 1970 said (see New South Wales Parliamentary Debates, 17 November 1970, 7864 at 7868- 7869):

“... Clause 40 is a revision of section 27 of the Police Offences Act relating to having in custody property reasonably suspected of being stolen or unlawfully obtained. The principle remains unchanged but the section has been expanded to take in not only the person in whose custody the property is found but an intermediary possessor of the property, and in this respect replaces section 29 of the Police Offences C Act.”

Section 29 of the Police Offences Act 1901 was as follows:

“(1) When any person who has been brought before a Justice charged

with an offence under section twenty-seven declares that he received anything the subject of such charge from some other person, or that he was employed as a carrier, agent, or servant to convey the same for some other person, such Justice shall cause every such person, and also if necessary every former or pretended purchaser or other person through whose possession such thing has passed, to be brought before him and examined, and shall examine witnesses upon oath touching the same.

(2) Whosoever appears to such Justice to have had possession of such thing, and to have had reasonable cause to believe the same to have been stolen or unlawfully obtained, shall be liable to a penalty not exceeding two hundred dollars, or to imprisonment with or without hard labour for a term not exceeding six months or to both such penalty and imprisonment.

Every such person shall be deemed to have had possession of such thing at the time and place when and where the same was found or seized, and the possession of a carrier, agent, or servant shall be deemed to be the possession of the person who employed such carrier, agent, or servant to convey such thing.”

In argument in this Court both parties sought to take comfort from

different features of the history of the offence of “goods in custody”.The appellant placed strong reliance upon the origins of the offence. These were described by Street CJ in R v Abbrederis [1981] 1 NSWLR 530 at 538. His Honour said:

“The creation of an offence conditioned upon the possession of

property as to the origin of which suspicion attaches has a long history in summary offences legislation. ... The general pattern of such legislation is to provide that a person having possession of goods suspected of being stolen may be arrested forthwith and taken and charged before a court; if he then fails to give a satisfactory explanation he will be convicted. An early Australian case to which reference is frequently made as authoritative is Brown v Schiffman [1911] VLR 133. ... It was held that the purpose of the legislation was to deal with persons caught in flagrante delicto and thus that it was necessary that the suspicion should exist at the time when the person is in possession

of the property.”

Street CJ went on to observe that the approach that the relevant time for

determining whether the suspicion and the reasonable grounds for such suspicion existed was the time when the person was in possession of the property (which, in the context set by his Honour, would presumably also have been the time of apprehension), was followed in Queensland, Western Australia, Tasmania, and South Africa.

The respondent, however, relies upon an important change of direction that was taken in the law of New South Wales. It is now settled law in this State that when a magistrate deals with a charge of goods in custody it is the duty of the magistrate to decide whether he is satisfied, at the time of his decision, that it is then proper to entertain a reasonable suspicion that the goods were stolen or unlawfully obtained: Ex parte Patmoy; Re Jack (1944) 44 SR (NSW) 351; 61 WN 228; Cleary v Hammond [1976] 1 NSWLR 111 and R v Abbrederis. The existence of such a suspicion is related in time to the proceedings before the magistrate rather than the arrest or charging of the accused.

The explanation of this apparently distinctive feature of the law of New South Wales was given by Jordan CJ in Ex parte Patmoy. His Honour traced the origins of the offence, pointing out that, prior to 1908, s 27 of the Police Offences Act, like the corresponding earlier provisions, was closely related to other provisions concerning powers of arrest. Section 27 was intended to be complementary to s 36 of the Police Offences Act, which in turn was designed to authorise police constables to stop, search and detain persons who might be reasonably suspected of having or conveying anything stolen or unlawfully obtained. Section 27 made it an offence for a person to

E be carrying or conveying anything in a public street in such circumstances that it might be reasonably suspected of having been stolen or having been unlawfully obtained, unless he gave an account to the satisfaction of a magistrate as to how he came by it. However, his Honour said that the amendments made in 1908 altered the whole framework of s 27. Following that amendment, the following position applied (at 356; 230):

“It is obviously no longer a mere complement of s 36. All that the relevant part of that section does is to authorise a constable to ‘stop, search and detain’ persons; and this has always been held to be restricted to persons having or conveying readily portable articles in public streets. In its new form, s 27 is divorced from s 36. It stands by itself, and creates new offences entirely unrelated to that section. Indeed, the power of arrest given by s 36 would no longer be available in relation to s 27 except in certain cases arising under s 27(a); and a constable who desired to arrest without a warrant for an offence provided for by s 27 would, in all other cases, have to rely on the general provisions of s 352(2)(a) of the Crimes Act 1900. Since the amendments of 1908, it is, in my opinion, no longer proper or possible to regard s 27 as controlled by s 36; as being restricted to persons detected in a street, in flagrante delicto; and as being inapplicable except to cases in which the suspicion which existed in the mind of the A detecting constable was reasonable at the time when he effected the arrest or decided to lay the information. In its altered form, s 27 is an independent, offence-creating section. According to its natural meaning, read as a piece of English, it now deals with persons having in their custody, or knowingly having in the custody of another person, or in a house or other place, anything which may be reasonably suspected of being stolen or unlawfully obtained. It takes its stand at the point when such a person is charged before a Magistrate with so having a thing with respect to which such a suspicion may be reasonably entertained, and it provides that if he does not give an account, to the Magistrate’s satisfaction, of how he came by it, he shall be liable to a penalty. It follows, in my opinion, that what the section now requires is that, at the time when the charge is being heard for the purpose of being disposed of, it is for the Magistrate to decide, in the first instance, on the evidence then placed before him, whether he is satisfied (beyond reasonable doubt, since it is a criminal charge) that it is then proper to entertain a reasonable suspicion that the thing was stolen or unlawfully obtained.”

The particular principle established in Ex parte Patmoy, which is one as to the relevant time at which the existence of grounds for suspicion about the goods is to be considered, and which has since been applied in many cases, does not bear directly on the issue in the present case. However, the respondent relies upon the underlying reason for that principle, involving as it does a major departure from the earlier concept of an offence of being caught, as it were, red-handed, in possession of goods which appear to be stolen but which, because of their nature, are of such a kind that actual proof that they were stolen could be difficult. Once it is accepted that there need be no contemporaneity between the time when the goods are found in the defendant’s custody and the time for considering whether they may reasonably be suspected of being stolen, why the respondent asks, should there be contemporaneity between the fact of custody and the time of apprehension or laying a charge? It should also be noted that Jordan CJ was speaking of s 27 of the Police Offences Act, and there are two additional reasons why the same conclusion applies, with even greater force, in relation to s 527C of the Crimes Act, quite apart from the settled course of authority since Ex parte Patmoy. First, the opening words of s 27, which gave some additional strength to the argument rejected by Jordan CJ, have now been replaced by more neutral words. Secondly, the presence in s 527C(1) of par (d) now makes it impossible to say that the section only applies to people caught in flagrante delicto. Plainly, in relation at least to people charged under s 527C(1)(d), it does not, unless that paragraph is to be given the extremely narrow meaning of being confined to cases where a person is actually apprehended in the course of transferring custody. It has not been argued in this Court that par (d) has such a narrow meaning.

There are cases which deal with the problem that arises where a defendant G has ceased to be in possession of the relevant goods.

In Cleary v Wilcocks (1946) 63 WN (NSW) 101, a case decided after Ex parte Patmoy, the accused was charged with having in his custody on 14 May 1945, thirty-two wrist watches suspected of being stolen. He was first A spoken to by the police on 17 May 1945 having, in the meantime, sold and delivered all the wrist watches to a third party in an arms-length transaction. It was not until some months later that he was charged and, later still, he came before a magistrate. The magistrate dismissed the charge upon the ground that, in the circumstances, the accused did not have the goods in his custody “upon being charged”. Herron J upheld the magistrate’s decision, and, in his reasons for judgment, appeared to treat as the relevant time for considering the element of custody the time when the charge was laid. His Honour said (at 102) that “the time at which the section begins its operation is when the person is being charged before a justice with having a thing in his custody”. He evidently did not consider that Ex parte Patmoy was in any way inconsistent with this view. It should be observed, having regard to the precise terms of the question asked in the present case stated, that there was in that case a substantial time delay between the date when the accused was apprehended and the date when he was charged, and that Herron J appears clearly to have regarded the latter, and not the former, date as being relevant. That decision plainly supports the appellant in the present case.

Herron J relied to some extent upon the reasoning of Street J in Ex parte Miller; Re Hamilton (1934) 51 WN (NSW) 23. That case was decided before Ex parte Patmoy and should, for that reason, be treated with some caution. The accused, whilst driving a lorry on which were loaded bags of wool, was accosted by the police and questioned as to the ownership and contents of the bags. His replies were regarded as unsatisfactory, and the bags were taken from him and placed in a shed at the police station. After inquiries, he was charged with “goods in custody”. The argument that was put on his behalf proceeded on a view of the law that was later contradicted by Ex parte Patmoy. The argument is reported as being to the effect that “the (accused) had been deprived of possession before the police could reasonably suspect that the goods had been stolen”. Street J apparently accepted at face value the proposition, implicit in that argument, that the relevant suspicion was that of the arresting police (rather than the magistrate) but answered the argument by finding that the temporary detention of the goods by the police for the purpose of pursuing their inquiries did not involve any loss by the defendant of the custody of the goods. His Honour said (at 24):

“... Where there has been a mere taking by the police for the purpose of testing in order to see whether a reasonable suspicion may or may not arise upon the facts, I do not think that there has been such an abandonment of possession as to enable the accused to say that the suspicion and the possession did not co-exist in his case.”

The premise upon which the argument and much of the reasoning in that case proceeds was, in my view, destroyed by the decision in Ex parte Patmoy and it should not be regarded as authority for any proposition beyond the precise point which it decided, which is that goods do not cease to be in the custody of an accused simply because the police require him to hand them over.

It may be observed in passing that the question asked by Shadbolt DCJ in the case stated was evidently formulated upon the assumption that the appellant did not, at any time after her bag was lost or stolen on 10 October 1986, have custody of the money in the bag. There is room for argument as to whether that assumption can stand with the actual decision in Ex parte Miller. In that case, as in the present case, and unlike the case of Cleary v A Wilcocks, there was no voluntary parting with the possession of the goods by the appellant. The appellant was at all material times the owner of the handbag and, apparently (subject to the suspicion as to their origins), of its contents. She lost the bag, but when Mr Kokubun found it, he handed the bag over to police. The difference between the position with respect to the money in the present case and the bags of wool in Miller is not clear to me. I would also add that there may have been a further issue as to whether the case fell within s 527C(1)(b). It seems rather odd that the outcome of the present case would have been different if the police had returned the handbag to the appellant for a few moments on 18 October. These, however, are matters that are not raised by the stated case. They have not been argued in this Court and I express no concluded view about them. As has been said, the stated case assumes that the appellant had custody of the goods on 10 October 1986 but not thereafter and, in particular, that she had ceased to have custody by the time she was apprehended and charged. It does not in terms advert to the significance of any difference between the time of apprehension and the time of charge, but that is understandable in the light of the assumption mentioned.

As a result of the decision in Ex parte Patmoy, and the later decisions of this Court which follow that decision, and also having regard to the opening words of s 527C and to the presence in s 527C of subs (1)(d), it is now impossible to resolve the question raised by the case stated simply upon the basis that (to use the language of Street CJ in R v Abbrederis) “the purpose of the legislation (is) to deal with persons caught in flagrante delicto”. That was the purpose of the original legislation to which s 527C can be traced, but it cannot now be regarded as an accurate and complete statement of the purpose of the present legislation, or, for that matter, of the corresponding legislation which immediately preceded the present provision.

On the other hand the purpose of the older legislation provides an important clue to a puzzle which arises as to the form of the present E legislation and which must be solved according to the ordinary processes of statutory interpretation. The puzzle is this. If s 527C(1)(a) covers the case of a person who once had the relevant goods in his custody, but later ceased tohave custody of them, what is the need for a provision such as s 527C(1)(d)?To pick up the words of the Minister’s speech in 1970, “an intermediary possessor” would already have been caught by s 527C(1)(a). The presence in the present legislation of par (d) reflects, in my view, an assumption about the meaning of par (a) which is that, at least in relation to the element of custody, the offence retains its historical connotation of being caught red-handed.

This consideration is reinforced by the notion, also expressed by the Minister, that s 527C(1)(d) was intended to replace s 29 of the Police Offences Act. The terms of that section also reflected a view of the meaningof s 27(a) which accords with the appellant’s submission, in that s 29(2) would have been largely unnecessary had s 27(a) meant what the respondent G submits it meant.

The situation is very similar to that which led the High Court of Australia to its decision in Meyer Heine Pty Ltd v China Navigation Co Ltd (1966)115 CLR 10. In that case the Australian Industries Preservation Act 1906 (Cth) was construed as having a territorial operation much more limited in scope than that of modern anti-trust legislation. The limitation, which reflected legal views that were current at the time of the original enactment of the legislation, was not found in the language of the principal provisions of the Act, but was reflected in the language of an ancillary provision, which clearly expressed the legislative assumption upon which the Act had been based. The High Court held that, construing the Act as a whole, the meaning of the more general language was much narrower than would have been the case if that language had been read in isolation.

So it is in the present case. Section 527C is to be read as a whole and, in particular, par (a) is to be read together with par (d). If par (a) is given the narrower meaning for which the appellant contends, then that makes sense of par (d), and there is, in turn, a clear historical explanation for the resulting legislative pattern which then emerges.

I would answer the question in the stated case in the affirmative, and remit the matter to Shadbolt DCJ to be dealt with according to law. The respondent prosecutor must pay the costs of the case stated.

ENDERBY J. I agree with the judgment of the Chief Justice and have nothing to add.

McINERNEY J. I agree with the judgment of the Chief Justice and have nothing to add.

Question in stated case answered in the affirmative. Matter remitted to District Court.

Solicitors for the appellant: Legal Aid Commission.

Solicitor for the respondent: Solicitor for Public Prosecutions.

I M NEWBRUN,

Barrister.

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R V CHAN

Court of Criminal Appeal: Mahoney JA, Hunt CJ at CL and Abadee J

22 May, 1 September 1992

Criminal Law — Property offences — Having in custody thing reasonably suspected of being stolen or otherwise unlawfully obtained — Basis and B reasonableness of suspicion — Absence of any reasonable explanation for custody of thing — Failure to prove thing stolen or unlawfully obtained —

Several conclusions as to provenance — Crimes Act 1900, s 527C. The Crimes Act 1900, provides:

“527C.(1) Any person who:

(a) has any thing in his custody; ...

which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, shall be liable on conviction before a stipendiary magistrate to imprisonment for 6 months, or to a fine of $500.”

Held: (1) The issue which arises under the section is whether the thing in the relevant custody objectively might reasonably be suspected of having been stolen or unlawfully obtained. (425F, 437E)

(2) The fact that there is more than one conclusion reasonably open upon the facts does not mean that, in law, the prosecution has failed to establish his case. (426F, 437E-F)

(Per Mahoney JA) It is sufficient if one of the suspicions which may reasonably be entertained is that which the section requires. It is not necessary that that conclusion is the most likely of those which may reasonably be entertained. (424E)

(Per Hunt CJ at CL) The weight to be given to each of the conclusions open upon the evidence is itself a question of fact, and it is for the tribunal of fact to determine whether the conclusion which the section requires has been established beyond reasonable doubt. (426F)

(Per Abadee J) The tribunal of fact must be able to say that the conclusion which the section requires is the strongest positive or definite inference available. (437E)

Cleary v Hammond [1976] 1 NSWLR 111; Grant v The Queen (1981) 147 CLR 503; Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701, considered.

Note: A Digest — CRIMINAL LAW (3rd ed) [230]

CASES CITED

The following cases are cited in the judgments:

Aldridge v Marks (1943) 44 SR (NSW) 69; 61 WN (NSW) 2.

Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701.

Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410.

Bill Williams Pty Ltd v Williams (1972) 126 CLR 146.

Brebner v Seagar [1926] VLR 166.

Cleary v Hammond [1976] 1 NSWLR 111.

Clugston v Roberts [1915] VLR 456.

Dunleavy v Dempsey (1916) 18 WALR 90.

Edens v Cleary [1975] 1 NSWLR 278.

Forrest v Normandale (1973) 5 SASR 524.

Grant v The Queen (1981) 147 CLR 503.

Hird v Grams; Ex parte Grams [1943] QSR 49.

Hofstetter v Thomas [1968] VR 199.

Hussien v Chong Fook Kam [1970] AC 942.

Lenthall v Newman [1932] SASR 126.

Moore v Allchurch [1924] SASR 111.

Murray v Gunst [1915] VLR 232.

O’Sullivan v Tregaskis [1948] SASR 12.

Plomp v The Queen (1963) 110 CLR 234.

R v Abbrederis [1981] 1 NSWLR 530.

R v Carter (Court of Criminal Appeal, 9 March 1978, unreported).

R v Cleary [1914] VLR 571.

R v Dittmar [1973] 1 NSWLR 722.

R v English (1989) 17 NSWLR 149.

R v Grace (1930) 30 SR (NSW) 158; 47 WN (NSW) 51.

R v Scott; Ex parte Church [1924] SASR 220.

Tucs v Manley (1985) 62 ALR 460.

Willis v Burnes (1921) 29 CLR 511.

CASE STATED

This was a case stated by Gallen DCJ in respect of an appeal under the Justices Act 1902, s 122, following conviction before a Local Court of an offence under the Crimes Act 1900, s 527C, of having custody of bank notes reasonably suspected of being stolen or unlawfully obtained.

P Byrne, for the appellant.

T L Buddin, for the respondent.

1 September 1992

Cur adv vult

MAHONEY JA. On 27 April 1989, Mr Wing Kee Chan was found to have in a cupboard in his home unit: 6,123 $50 Australian bank notes, 14,788 $20 Australian bank notes and 898 $10 Australian bank notes. These totalled some $621,000. He did not claim the money was his own. His explanation was that it had been left with him by a man he had known for about six months but whose full name, address and identity he did not know. The explanation was one which might well be disbelieved. The police officers concluded that the notes might reasonably be suspected of having been stolen or otherwise unlawfully obtained within s 527C of the Crimes Act 1900.

Mr Chan was charged with an offence under the section and was convicted in the Local Court. He appealed to the District Court. His Honour Judge Gallen concluded that the conviction should be upheld. He was requested to state a case for the opinion of the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912. It is that case which is now before this Court.

The facts are detailed in the judgment of Abadee J, which I have had the

advantage of reading. I agree with the orders proposed by his Honour. I agree with his Honour’s conclusions and generally with his reasons.

I agree that the prosecutor did not withdraw or offer no evidence upon the relevant charge. I do not desire to add to what Abadee J has said in that regard.

The submissions made for Mr Chan in relation to s 527C raise issues of some difficulty. It was not seriously in contest that, in the relevant sense, Mr Chan “had” the bank notes within the terms of s 527C. It is clear that the bank notes, as such, constituted, a “thing” within the section and that the section may apply to them: see Grant v The Queen (1981) 147 CLR 503; and the discussion of the section in Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701. The issue of difficulty is whether the bank notes which Mr Chan had “may be reasonably suspected of being stolen or otherwise unlawfully obtained”.

In considering an issue of this kind it is ordinarily of assistance to consider three matters: is the occasion one for suspicion?; what is the suspicion or suspicions which may be reasonably entertained?; and does that suspicion or suspicions satisfy the section?

1. Was the occasion one for suspicion?

The section operates upon the assumption that there was, in respect of the thing in question, doubt or uncertainty as to how it was “obtained” by the accused. There may be circumstances in which the way in which it had been obtained cannot be in doubt: in such circumstances, the section has, I think, no operation.

In the present case, there was, of course, doubt as to how the bank notes had been obtained by Mr Chan. He had them in his possession or custody: he said that he was holding them for the person he referred to. But there was uncertainty as to how he had obtained them. It was unlikely that he had obtained them in the way that he said: his explanation might objectively be thought to lack credibility and be disbelieved. It was unlikely that he had earned the money: his occupation and background seemed inconsistent with his having obtained the bank notes in that way. And no other explanation was suggested by him. Therefore, given disbelief of his explanation, there was uncertainty as to how he had obtained the notes.

2. What suspicions were there?

What may reasonably be suspected as to how he obtained the notes

depends, of course, upon what is known or may be inferred in relation to them. It could and, I think, would be inferred that the possession of them was related to something untoward, such that he was not prepared to disclose it. This may be inferred from, for example, the way he kept the money, in the form of notes, in his premises rather than in some safer manner and because he saw it appropriate to lie as to how he had obtained possession of the notes. The inference might well be drawn that he had obtained them in a way which he desired to conceal. But, as the argument suggested, there are several ways in which the notes could have been obtained by him which could lead to his lying but which would not fall within the phrase “stolen or otherwise unlawfully obtained”. It is to be noted that it is the obtaining of the bank notes as such which is in question: it is not the obtaining of money or property which has been converted into the bank notes, by legal sale or exchange or in some such way: see generally, Grant v The Queen. One possible inference would be that he had derived the bank notes as income for which he had not accounted for purposes of taxation or otherwise for revenue purposes. He might have obtained the bank notes by illegal gambling or it might be that the moneys, albeit lawfully obtained, were being held in connection with a crime which it was proposed to commit, for example, a robbery.

The evidence would, in my opinion, exclude some at least of these. Thus, itis unlikely that Mr Chan would have derived the bank notes as income, having regard to what was known of his occupation and generally his situation. The likelihood of his lying as he did if the money had been derived from gambling would, I think, be of a reasonably low order.

These possibilities cannot be excluded: they must I think remain as possible ways in which the bank notes could have been obtained. But, in my opinion, the possibility that the bank notes had been stolen or otherwise unlawfully obtained remained a possible and, I am inclined to think, the likely inference.

3. Does such suspicion satisfy the section?

I shall assume for this purpose that there is not only one but there are several ways in which, in the circumstances objectively considered, the bank notes could reasonably be suspected to have been obtained and that only oneof these would fall within the phrase “stolen or otherwise unlawfully obtained”. The question is whether in such circumstances the section is satisfied. It is in my opinion sufficient if the court concludes that, objectively considered, one of the suspicions which may reasonably be entertained is that the notes were stolen or otherwise unlawfully obtained. The application of the section is not restricted to the case in which there can be only one possibility which can reasonably be suspected as the way in which the thing was obtained. That would restrict the section beyond the purpose of it — to place upon the defendant, in circumstances of relevant suspicion, the onus of satisfying the court at least that “he had no reasonable grounds for suspecting that the thing referred to in the charge was stolen or otherwise unlawfully obtained” (s 527C(2)). To adopt a narrower construction would make the section in practice unworkable. In many, if not most, cases more than one suspicion could reasonably be entertained. It is not required that the Court determine what is the most likely of the possible suspicions. The section is not limited to the case where the suspicion that the thing was stolen or otherwise unlawfully obtained is the most likely of those which may reasonably be entertained.

The suspicion must, of course, be one which is “reasonably” entertained in the sense that the relevant obtaining of it must be “reasonably suspected”. In the present case, it is not, I think, seriously in contest but that, given the construction of the section to which I have referred, the suspicion that the bank notes had been stolen or unlawfully obtained could reasonably be entertained.

I agree that the case should be remitted to his Honour Gallen DCJ to be dealt with by him in accordance with the conclusions of the Court.

HUNT CJ at CL. The background against which this case has been stated for the determination of this Court is described in the judgment of Abadee J.

The question asked by Judge Gallen is whether his determination in relation to two particular issues was erroneous in law. The two issues, although described by the judge as the appellant’s contentions, are — each of them — separate issues which had been determined by him in favour of the prosecution, and the matter was argued in this Court upon the basis that we have to decide whether each of those determinations was erroneous in law.

Unfortunately, each of those determinations is expressed in the stated case in terms — in each case being whether “the evidence ... was not such to enable me to find that ...” — which are equivocal in raising a question of law. If there was in law evidence to support a particular finding, the question of whether the finding should have been made is clearly enough one of fact. On the other hand, the question of whether there was evidence to support that finding is one of law. The appeal was necessarily argued upon the basis that the determination in question should be interpreted in the second sense, and it is upon that basis that I consider them.

The first question is therefore whether there was evidence to support the judge’s finding that the prosecutor did not in fact offer no evidence before the magistrate. The relevant statement made by the prosecutor is set out in the judgment of Abadee J.

The appellant was reduced to submitting that the mere articulation by the

prosecutor of the words “I wish to offer no evidence”, automatically and irrespective of context or intention, required the magistrate to dismiss the information. I hesitate to describe any submission made by Mr Byrne as absurd, but I can find no other description appropriate to that submission.

The interpretation adopted by the judge — that the prosecutor was ultimately intending only to amend the existing charge (to comply with the E suggestion made by this Court in R v Dittmar [1973] 1 NSWLR 722 at 724) — was not only open to him; it was in my view the only sensible interpretation available. Accordingly, the first determination by the judge

was not erroneous in point of law.

The second question contains another ambiguity. The issue raised by a prosecution pursuant to s 527C of the Crimes Act 1900 is not whether the tribunal of fact reasonably suspects that the thing was unlawfully obtained, as this determination suggests. The section itself makes it clear that the issue is whether the “thing” in the relevant custody “may be reasonably suspected of being stolen or otherwise unlawfully obtained”. There is a long line of authority dealing with the predecessors of s 527C — and which are applicable to s 527C — which emphasises that the issue is whether such a description objectively relates to the thing itself — that it was something which might reasonably be suspected of having been unlawfully obtained. It is sufficient to refer to Cleary v Hammond [1976] 1 NSWLR 111, to R v Carter (Court of Criminal Appeal, 9 March 1978, unreported) and to Anderson v Judges of theDistrict Court of New South Wales (1992) 27 NSWLR 701.

Again, the appeal was argued upon the basis that the second determi- nation in question was whether there was evidence to support the finding that the notes might reasonably be suspected of having been unlawfully obtained.

In effect, the judge found the following facts:

(i) The appellant had in his custody bank notes to the value of $621,000, found in two bags in a cupboard in his home unit.

(ii) The appellant was unemployed.

(iii) His explanation for his possession of the notes was that they had been left with him to look after for a couple of days by a man whom he had known for about six months, whose name he did not know (beyond “Phils”), nor did he know the man’s address or telephone number, but who had paid him in advance the sum of $1,000 for looking after the notes for that period.

(iv) That explanation was so implausible that it was reasonable to suspect that the appellant was not telling the truth, in order to conceal the real circumstances as to how he came to be in possession of the money. There is not, and there could not be, any suggestion that there was no evidence to support those facts, including the conclusion stated in par (iv).

The issue therefore is whether those facts are sufficient for a finding thatthe notes might reasonably be suspected of having been unlawfully obtained.Mr Byrne, with his customary skill, raised a number of arguments as to whythey were not. I consider it necessary, however, to refer to only some of those arguments.

The first was that, in the absence of any possible identification as to the source of the illegality, the offence could not be established. I reject that argument. The existence of such an identification certainly assists the D prosecution in proving the charge, but the absence of any such identification is not a bar to a conclusion that the relevant thing might nevertheless reasonably be suspected of having been unlawfully obtained.

Then it was submitted that, in the present case, there were in addition to such a conclusion what were claimed to be two other competing conclusions equally open — that the notes might reasonably be suspected of having been lawfully obtained, or of having been received in exchange for something else which may have been unlawfully obtained. The latter conclusion, he submitted, would not bring the appellant within the terms of the section because the notes were not themselves unlawfully obtained. That would be so: Grant v The Queen (1981) 147 CLR 503. In any event, his submission was, the availability of more than one conclusion concerning the provenance of these notes (where one of them was consistent with innocence) meant that, in law, there could not be a finding beyond reasonable doubt that the offence had been made out.

I reject this last submission. The weight to be given to each of the different conclusions open upon the evidence is itself a question of fact. The existence of one conclusion consistent with innocence may be regarded by the tribunal of fact as of little weight in the circumstances of the particular case. Its mere existence does not mean that, in law, the prosecution has failed to establish its case: cf Plomp v The Queen (1963) 110 CLR 234 at 247; Attorney General’s Reference (No 1 of 1983) [1983] 2 VR 410 at 415. Moreover, it can rarely be said that two or more competing conclusions must, in law, be regarded as equally open. I am not satisfied that each of the competing conclusions put forward in the present case must, in law, be so regarded.

The issue is therefore simply whether, on the facts found by the judge(there being evidence to support them), the particular conclusion of guilt reached by him was in law open to him to reach beyond reasonable doubt. In my view, it clearly was. Whether the judge should have found that particular conclusion on those facts was itself a question of fact, and one which is not open to challenge in this Court. It is accordingly unnecessary in this appeal to decide any of the other issues which were argued. Accordingly, the second determination by the judge was also not erroneous in point of law.

I agree that the case should be remitted to Gallen DCJ with those expressions of opinion, to be further dealt with by him according to law.

ABADEE J. Mr Wing Kee Chan, whom I shall call the appellant, was convicted in St James Local Court on 5 March 1990 of an offence that on 27 April 1989 at Alexandria, he did have in his custody certain things to wit, 118 $100 bank notes, 6,123 $50 Australian bank notes 14,788 $20 Australian bank notes and 898 $10 Australian bank notes which may be reasonably suspected of being stolen or unlawfully obtained. The offence was an offence against s 527C of the Crimes Act 1900. The section provides as follows;

“527C.(1) Any person who —

(a)  has any thing in his custody;

(b)  has any thing in the custody of another person;

(c)  has any thing in or on premises, whether belonging to or occupied by himself or not, or whether that thing is there for his own use or the use of another; or

(d)  gives custody of any thing to a person who is not lawfully entitled to possession of the thing,

which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, shall be liable on conviction before a stipendiary magistrate to imprisonment for 6 months, or to a fine of $500.

(2) It is a sufficient defence to a prosecution for an offence under subsection (1) if the defendant satisfies the court that he had no reasonable grounds for suspecting that the thing referred to in the charge was stolen or otherwise unlawfully obtained.

(3) In this section, ‘premises’ includes any structure, building, vehicle, vessel, whether decked or undecked, or place, whether built upon or not, and any part thereof.”

Following that conviction the appellant was sentenced to six months imprisonment. From that conviction, the appellant appealed under s 122 of the Justices Act 1902 to the District Court. The appeal was heard by Gallen DCJ on 8 February 1991 and 19 June 1992. According to the determination, set forth in the case stated, on 19 June 1991, Gallen DCJ gave judgment on the question of whether or not the prosecutor in the Local Court had offered no evidence in the matter. Later on the same day his Honour indicated that he was satisfied beyond reasonable doubt that he suspected the money in the possession of the appellant was unlawfully obtained. However, his Honour reserved judgment.

On 5 August 1991, his Honour gave judgment in which he held that in the circumstances demonstrated by the evidence that it was proper for him to entertain a reasonable suspicion that the money was unlawfully obtained.

The appellant requested that his Honour state a case. Pursuant to s 5B of the Criminal Appeal Act 1912 his Honour stated a case for the determination of this Court.

The case stated reveals that his Honour’s findings of fact were as follows.

The appellant had been charged, for that on 27 April 1989 at Alexandria in the State of New South did have in his custody about $621,010 in cash money (Australian currency), which may be reasonably suspected of being stolen or otherwise unlawfully obtained.

The prosecutor in the Local Court when the matter was called on for hearing had said:

"Your Worship might I in the first instance I wish to offer no evidence on the current charge and I'd like to substitute a fresh charge. It only varies on the particulars of the charge, the substituted charge, in that specific bank notes are actually referred to in the substituted charge..."

His Honour found as a fact that the prosecutor did not however take the final step of offering no evidence. He found that the prosecutor had indicated an intention so to do but before she carried out that step she did not proceed in the way she originally indicated and instead sought to amend the existing charge and was permitted to do so. His Honour further found that the magistrate had jurisdiction to hear the evidence that was adduced on behalf of the informant.

I now turn to consider the facts found by his Honour in relation to the circumstances giving rise to the charge.

His Honour found that, at about 1.22pm on 27 April 1989, Detective Sergeant Hardiman with a number of other police officers attended the Dappellant’s home unit in Alexandria and executed a search warrant. Police searched the premises and found in a cupboard in the bedroom two bagseach containing a quantity of Australian bank notes. The total amount in thebags was $621,010.

Detective Sergeant Hardiman had a conversation with the appellant in the following terms:

“Q. Whose money is that? A. A friend’s. He left it here yesterday and asked me to look after it.

Q. Why did he leave that with you? A. I don’t know, he just asked me to look after it.

Q. What is your friend’s name? A. Phils.

Q. Phils. Is that his first name or his last name? A. Just Phils. I don’t know any other name for him.

Q. Where does he live? A. I don’t know.

Q. What’s his phone number? A. I don’t know.

Q. How long have you known him? A. About six months.

Q. Where did you meet him? A. At Kings Cross, in a disco.

Q. How do you contact him? A. He rings me sometimes and we go out.

Q. What sort of car does he drive? A. I don’t know.

Q. How much money is in those bags? A. $200,000.”

Detective Sergeant Hardiman then cautioned the appellant and then a conversation in the following terms took place:

“Q. How do you know that there is $200,000? A. Phils told me.

Q. Did he say what the money is for? A. No, he just asked to look after it for a few days. He gave me $1,000 for doing it.

Q. What does Phils look like? A. He’s about 3 inches taller than me. He speaks with a difference, I think he is Yugoslavian.

Q. What colour hair does he have? A. Brown with gold in it. Like her hair.

Q. You mean sandy coloured? A. Yes, like that.

Q. Where do you work? A. I’m unemployed.”

Detective Sergeant Hardiman had further conversation with the appellant then the following conversation took place:

“Q. Exactly when did Phils bring this money to you yesterday? A. In the afternoon, about 4.

Q. Did Phils leave anything else here? A. No.

Q. Did Phils say when he would be back to get his money? A. He just said to keep it for a couple days.”

After this conversation the appellant was then arrested.

His Honour also found that the explanation given by the appellant to the police was so implausible that it was reasonable to suspect that the appellant was not telling the truth, and to suspect that he was not telling the truth in order to conceal the real circumstances of how he came to be in possession of the money.

His Honour then found that it was proper to entertain a reasonable suspicion the money was unlawfully obtained.

The case stated contains the appellant’s contentions as to why his Honour’s determination was erroneous in point of law. These were:

“1. That the evidence concerning what the prosecutor said to the Magistrate in the Local Court was not such to enable me to find that the prosecutor did not take the final step of offering no evidence.

2. That the evidence concerning the finding of the money in the appellant’s custody and the conversations with the police was not such to enable me to find that it was reasonable to suspect that the money was unlawfully obtained.”

In the case stated his Honour set forth the questions to be determined by the court. Such was stated to be whether his determination was erroneous in point of law.

I turn now to consider the appellant’s first contention which was again relied upon before this Court.

Mr Byrne asserted that what the prosecutor had said in the Local Court in fact had brought the proceedings to an end. He claimed that the use of words “I wish to offer no evidence on the current charges” without more, irrespective of context and intention, had the effect of not only bringing the proceedings to an end but should have resulted in the magistrate immediately dismissing the information.

In my opinion the submission should be rejected.

Section 5B of the Criminal Appeal Act makes it apparent that the Court may only entertain a question of law arising on any appeal to the District Court.

The question of law is limited to the legal effect of the facts found. From the facts found in relation to this issue I discern no question of law. The judge’s finding that the prosecutor did not take the final step of offering no evidence before the magistrate was one of fact. If there was evidence of the fact, the question whether that evidence ought to be accepted as sufficient to establish the fact, was itself, a question of fact. In my view there was evidence to support the finding by his Honour. There is no question, in terms asked, whether there was any evidence to support the finding of fact that the prosecutor did not take the final step of offering no evidence. That question, when asked, is a question of law. However, even treating the question as properly being one whether there was evidence to support the finding, I would conclude that there was such evidence. Further, the construction of the evidence in relation to what had occurred, was in my view, itself a question of fact. His Honour made specific findings of fact in relation to what had happened. In my view such concludes the matter. His Honour’s finding of fact raises no question of law at all in relation to the first contention.

There is a further ground for rejecting the submission.

It is true that the prosecutor perhaps initially selected an unfortunate choice of words to convey what was revealed to be her intention, namely, to amend the particulars of the charge. The words did not indicate an intention not to proceed with the charge. Clearly, what was conveyed was an intention to amend the particulars and not a wish to withdraw the charge itself. This interpretation was one open to his Honour. The argument urged by the appellant stands in the face of the words that were in fact used and the findings of fact in relation to them. His Honour’s findings, in my view, clearly gave effect to the language used by the prosecutor.

It appears to me that in this case where bank notes were the subject of the charge, what the prosecutor sought to do was only to change the particulars by substituting for the total amount, particulars of the number and types of the different bank notes. Such a variation or change in particulars was no doubt sought to give effect to the views of this Court in R v Dittmar [1973] 1 NSWLR 722 at 724 per Kerr CJ. In R v Dittmar where a total amount of money was charged, the Court did not suggest that the information was bad, but rather suggested that strictly speaking it should be framed so as to charge the defendant with having a number of different types of bank notes, “a matter which could be covered by amendment if it were necessary to do so”. In Edens v Cleary [1975] 1 NSWLR 278, Yeldham J also held that the failure to particularise the bank notes in the information would not render the information bad, but better particulars might be required to be furnished.

Thus, the course adopted by the prosecutor appears to have accorded with authority. In my opinion the action taken, the actual words used when readin context, revealed an intention to amend or vary, the particulars of the F charge in the manner stated. The interpretation adopted by his Honour wasone open to him and not erroneous in point of law.

Finally, in relation to this point, the matter of amending or changing the particulars raises itself no question of law. No question in terms has been asked whether it was open to amend the particulars. The only point taken was that the prosecutor could not do so, because she had taken the final step of offering no evidence. This submission having been rejected, there was no adjournment sought and no claim of prejudice made to the proposed course.

For all these reasons the appellant’s first contention should be rejected.

I now turn to consider the appellant’s second contention.

Mr Byrne submitted that the circumstances, in which the money the subject of the charge were found, were not such as to enable a finding beyond reasonable doubt that it was reasonable to suspect that the money was stolen or unlawfully obtained.

He further submitted that for the purposes of deciding this issue, all of the circumstances had to be considered. In relation to this submission, I do not consider that such is strictly the approach to the question. It seems to me that in a situation where the court is asked to determine a question of law in a case stated, its attention must be confined to the facts which the learned judge has stated as having been found by him. The question of law is limited to the legal effect of the facts found by him: see Bill Williams Pty Ltd v Williams (1972) 126 CLR 146 at 154, 157 per Walsh J.

In the present case there is no suggestion that the judge, in terms, misdirected himself as to the meaning of the section, proceeded on an erroneous view of the section or that within the case itself there were findings of fact quite inconsistent with or contradictory with his Honour’s finding that it was proper to entertain a reasonable suspicion that the money was unlawfully obtained. The case stated does not in terms pose a question, whether there was any evidence to support the finding. However, a question of whether there was evidence to support the finding would be a question of law.

As I have earlier indicated in relation to Mr Byrne’s first submission that where it appears to me that if there is any evidence, the matter of its sufficiency, is a question of fact for the lower court. If there is evidence to support a particular finding, the question of whether the finding should have been made, is clearly one of fact. Further, whether suspicion in fact and reality exists, appears to be essentially a question of fact: Hofstetter v Thomas [1968] VR 199 at 207 per Menhennitt J. My view is that in this case stated there is no proper basis for challenging what appears to be essentially a finding of fact.

However, Mr Byrne submitted that in this case there were several questions of law to be considered. Despite the formulation of the question in the case stated he submitted that we should regard the question of law as being whether the evidence, or the facts found, supported the judge’s finding that it was reasonable to suspect that the money was unlawfully obtained. He contended that, in this case, there was no reference to the nature of the source of any illegality. Mr Byrne submitted that the money was not linked to a specific crime nor was he said on the evidence associated with criminal activity of a more general nature. In his first written submission he argued that in the present case there was simply a very large sum of money found without any accompanying circumstances that would appear to suggest some specific crime or some general criminality, illegality or unlawfulness. In oral argument he conceded that being realistic it would be impossible to suggest that there was not a “taint of illegality about this money”. In making this concession Mr Byrne qualified it, by stating that such was not of itself sufficient to prove an offence under s 527C. He further submitted that it had to be “this money that is the precise bank notes that had been unlawfully obtained”. It was argued that all of the cases on “goods in custody” involved at least a suggestion of a specific criminal offence and that in this case there was nothing about the money itself which suggested it was stolen or unlawfully obtained. There was no attendant criminality and none of the indicia of any crime.

In my view this submission should be rejected.

It is true that in some of the cases referred to by Mr Byrne, evidence had been adduced pointing to the statutory thing as having been the subject of a specific crime or perhaps otherwise associated with some criminal activity. Presumably this was because the evidence of such was available or would otherwise facilitate proof, not because that evidence was essential or required to be proved to establish the charge. The mere fact that there is some evidence of a specific offence, or even of some link between an offence and the property in question does not lead to the conclusion that there is any requirement upon the prosecution to provide the connection contended for namely, in every case, or indeed, necessarily, in any case. There is no necessity for prosecution to point to the commission of a specific or general offence. Authority does not support such a proposition and it indeed appears to be clearly against it.

It has long been the law that in respect of an offence such as s 527C, or its predecessors, that it was not necessary to show that the things were stolen. In Willis v Burnes (1921) 29 CLR 511, Knox CJ (at 514) said that “it is not necessary to show that the goods were in fact stolen”. Similarly it would seem to me that there is no necessity for the prosecution to show that they were “otherwise unlawfully obtained”. In Murray v Gunst [1915] VLR 232,the defendant submitted, that there was no case for the defendant to answer,in as much, no knowledge of any robbery of the particular goods found in the possession of the defendant had been proved. In holding that the suspicionmust attach to the goods (things), not to the person, Cussen J (at 237), even suggested that a person might perhaps be convicted under the section although the articles were actually shown not to have been stolen at all. It isnot necessary to decide whether this latter observation is correct, at least, inthe terms as stated. In Clugston v Roberts [1915] VLR 456, A’Beckett J(at 459) observed that he did not think it could be reasonably supposed thatthe section was only intended to be acted upon where there was evidence E distinctly identifying the property as property which had been stolen. He considered that in many cases the identity would be impossible to establish except by reasonable inference. In O’Sullivan v Tregaskis [1948] SASR 12, the court also held that the suspicion must attach to the goods and not to the person in whose custody they were found. Napier CJ (at 15) observed that the suspicion may be justified without any report of stolen property. Again, in Forrest v Normandale (1973) 5 SASR 524, the Supreme Court in restating that the suspicion must attach to the goods, said it was not necessary that the property should be suspected to be some specific property actually reported to have been stolen. In Dunleavy v Dempsey (1916) 18 WALR 90, Burnside J held that there was no requirement to prove any actual offence in connection with the goods.

Further, against acceptance of the appellant’s contention, is the fact that the offence created has never been regarded as duplicitous. Whether under the earlier provisions or the present provision, the prosecution has never been required to make an election as to whether it contended that the property to which the reasonable suspicion may attach is “stolen” or “unlawfully obtained”: see Moore v Allchurch [1924] SASR 111 at 119. As the Crown submitted, this lends further weight to its contention that there is no necessity for the prosecution to point to the commission of a specific offence before it can succeed.

Further, the section provides that if the state of affairs described exists then the offence is proved. The offence involves proof that the thing might reasonably be suspected of having been unlawfully obtained. The focus is on suspicion. The offence is not concerned with offences of stealing or receiving. In many cases where bank notes are involved, because of their very nature

B and kind, actual proof that they were stolen or unlawfully obtained could be difficult or even impossible. In Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701, Kirby P observed that usually where the “thing” is clearly owned by another person and bears a label, identifier or reputation of such ownership, the basis of the suspicion will be readily established, whereas in the case of bank notes it may be more difficult to establish the suspicion to which the section refers. The distinction made by his Honour thus emphasises that proof of ownership of the “thing” by another more readily facilitates proof in the sense of making it perhaps easier from an evidentiary point of view to establish a firmer basis of the suspicion.

Reasonable suspicion is the minimum mental attitude. In R v Grace (1930) SR (NSW) 158 at 163; 47 WN (NSW) 51 at 53, Halse Rogers J in discussing the operative availability of the indictable charges of larceny and receiving on the one hand and, on the other hand, the statutory summary offence of goods in custody, expressed the view the word suspicion was “intended to indicate a minimum and not a maximum as regards proof”. In R v Carter (Court of Criminal Appeal, 9 March, 1978, unreported), Street CJ, speaking in relation to s 40 of the Summary Offences Act (the predecessor of the present section) said that under that section a court was concerned with an “objective inquiry”. His Honour said that in relation to an ordinary case of a charge of goods (things) in custody it was not necessary to undertake consideration of whether the evidence would ever support an indictment for larceny or receiving. The selection of the charges was necessarily entrusted to the Crown law authorities.

Finally, in relation to this submission the authorities would suggest that in

any event even in cases of actual larceny, an acquittal on the charge of

larceny is not a bar to conviction upon the charge of unlawful possession. It

is clear that it is not such a bar: R v Cleary [1914] VLR 571; R v Scott;

Ex parte Church [1924] SASR 220 and Lenthall v Newman [1932] SASR 126.

It has not been suggested that the evidence in this case would have

supported a charge of larceny or receiving.

The argument that the relevant statutory “reasonably suspected” cannot

be found in the absence of some actual evidence identifying the very bank notes with some general criminal activity or specific crime, should thus be rejected. In my view there is no necessity to show that the goods were stolen or otherwise unlawfully obtained, nor, any need to show a crime with which the property has to be linked.

I now turn to consider Mr Byrne’s further submissions.

In his original submissions Mr Bryne argued that it was equally open in the circumstances to reasonably suspect: (i) that the money was the proceeds of crime, or (ii) that it was used for some criminal purpose, or (iii) that it was lawfully obtained. He argued that each of these reasonable suspicions could apply to some of the money, to all of the money, or, it could be a combination of any of the above, in relation to various proportions of the money, and further that there was nothing, which suggested that the specific suspicion required by the section was therefore, more open than the other. Thus, he argued that any reasonable suspicion that the whole of the money was stolen or unlawfully obtained, must be made on the basis of speculation and conjecture.

In his oral argument, Mr Byrne submitted that, where there were a number of possible explanations for the custody of a thing, then it could notbe found which of such explanations was perhaps the more likely. He then submitted that where in a particular case it was open to find various suspicions which accounted for a defendant having a thing, but not all of which fell within the words being “unlawfully obtained”, then a magistrate would be precluded from holding that there was a reasonable suspicion thatthe thing was unlawfully obtained. He argued that reasonable suspicion mustbe established beyond reasonable doubt. He submitted that where there was C an explanation reasonably open for the possession of the money in the case,

not consistent with guilt on the specific charge, then that would raise reasonable doubt as to the holding of the reasonable suspicion.

In his further written submissions, furnished by leave, Mr Byrne expanded these earlier submissions. He argued that even accepting that the circumstances in which the bank notes were found in the present case gaverise to a reasonable suspicion that they were tainted by some form of illegality, that such a suspicion could take one of at least three principal forms. Firstly, the actual bank notes themselves were stolen or unlawfully obtained, secondly, that the money was the proceeds of some undefined criminal activity but was not the actual money physically used in that activity,and finally that the money was used for some criminal activity. He arguedthat there was no evidence which would tend to make any one of the alternative suspicions available, and that in order to prove the offence, it was necessary to establish that it was reasonable that the suspicion be held thatthe very actual bank notes themselves were stolen or unlawfully obtained.Mr Byrne submitted that there was no evidence whatsoever as to the possible source of the money. He argued that because of the appellant’s refusal to explain the source of the money, albeit, not claiming that the money was his own, this meant that at the end of the prosecution case, thestate of the evidence could not permit the judge to suspect that these verybank notes, the subject of the charge, were unlawfully obtained, rather than having been lawfully obtained, obtained as the proceeds of crime, been exchanged or converted or, even for that matter, were to be used for some F criminal purpose in the future.

The submissions advanced by Mr Byrne bear some similarity to those advanced by the claimant in Anderson. That case involved a summons for relief, prerogative in nature, directed to the District Court concerning the scope of s 527C of the Crimes Act. It was not a case stated situation.

Mr Byrne was not able to point to a single authority where the question of multiple possible suspicions had arisen in respect of this class of offence. In Anderson’s case, the submission was, rather, that such evidence as existed was at least equally consistent with the person’s innocence. The reasoning in Anderson would tend to deny that there may be such a statutory situation calling for that conclusion.

For myself, I would have thought that there was a threshold problem with the arguments of Mr Byrne. As I have said it seems to me that whether suspicion in fact and reality exists appears to be essentially a question of fact. There are problems in challenging in a case stated a finding such as has been made by Gallen DCJ.

In the Bill Williams case, Walsh J said (at 156):

“In some cases it is a difficult task to determine whether different conclusions or but one conclusion are or is reasonably open. It is easy, in endeavouring to make a decision on that question, to slip across the boundary which must be maintained between the evaluation of the legal consequences of facts already found and the making of findings of fact. In this case our attention must be confined to the facts which the learned judge stated as having been found by him. On a consideration of those facts, I have reached the conclusion that it was not a case in which his decision should have been held to have been erroneous in law.”

These observations should be borne in mind when one is considering the approach to be adopted in relation to a case stated. On a consideration of the facts found I would likewise reach the conclusion that Gallen DCJ’s determination was not erroneous in law and involved a determination of purely a question of fact. For essentially this reason I would dismiss the appeal.

However, having regard to the approach adopted in argument in relation

to the question asked in the case stated it is appropriate that I should consider and examine the further submissions of Mr Byrne.

It is now well settled in New South Wales that when a magistrate deals with a charge of things in custody it is the duty of the magistrate to decide whether he or she is satisfied at the time of his decision that it is proper to entertain a reasonable suspicion that the things were stolen or unlawfully obtained. The existence of that suspicion is related to the time of proceedings before the magistrate and not to the subjective suspicion of the police on the arrest or charging of the accused: R v English (1989) 17 NSWLR 149; Anderson’s case. It is not necessary for the custody of the goods or things and the suspicion that the things were stolen to be coexistent: see R v Abbrederis [1981] 1 NSWLR 530.

In Anderson’s case, Kirby P described the section as an exceptional one which had stood in the law in varying forms for a long time. He said (at 714):

“Attention must be drawn to the qualified mental element which must be established in order to attract the operation of the section. It is enough that it is shown that the thing in custody ‘may be reasonably suspected of being ... unlawfully obtained’. The word ‘may’ falls short of ‘is’. The word ‘suspected’ falls short of ‘known’ or even ‘convinced’ or ‘shown’. In another context, it has been said that ‘suspicion’ is a state of conjecture or surmise when proof is lacking: see George v Rockett (1990) 170 CLR 104 at 115f. The suspicion must, it is true, be ‘reasonably’ held. It must be determined not according to the subjective beliefs of the police at the time but according to an objective criterion determined by Ex parte Patmoy; Re Jack (1944) 44 SR (NSW) 351 at 356.”

That the word “may” also falls short of “are” in the words “are reasonably suspected” in s 233B(1) of the Customs Act 1901: see R v Abbrederis.

In Cleary v Hammond [1976] 1 NSWLR 111 at 116, Lee J (in a passage expressly approved by the Court of Criminal Appeal in R v Carter when dealing with s 40(1)(c) of the Summary Offences Act 1970 said:

“The substantial effect of the interpretation so placed upon the section was that the expression ‘may be reasonably suspected of being stolen ...’ ceased to be referrable to the suspicion of any particular person, and became, in effect, a description of the goods which the magistrate attached — or did not attach — objectively to them after hearing all the evidence in relation to them. His conclusion in any givencase under the section was to be, not that the suspicion of the police officer was or was not reasonable at any particular time, but simply thatthe goods, on the evidence, were or were not goods which might be reasonably suspected of being stolen or unlawfully obtained. This meaning of the expression ‘may be reasonably suspected of being stolen...’ was stressed by Knox CJ in Willis v Burnes (1921) 29 CLR 511, at514, where his Honour drew attention to the fact that what had to be proved under the section was not that the goods ‘were reasonably suspected of being stolen ...’ — which would involve a person actually entertaining a reasonable suspicion — but that the goods ‘might be reasonably suspected of being stolen ...’ which was simply the conclusion to be arrived at after an objective assessment of the evidence available.”

This view, expressed by Lee J is in my opinion further reflected in the President’s judgment in Anderson when he said (at 715):

“The pre-conditions must, as in any other criminal offence, be established beyond reasonable doubt. How a level of thought which is qualified by what ‘may’ be (and does not need to reach beyond what is ‘suspected’) can be established beyond reasonable doubt is not entirely clear. But the section exists and has survived for more than a century in substantially the same form. It can apply to bank notes. It must therefore be given meaning. Presumably the criminal onus and the words of the section must be reconciled by saying that the court before which the person is charged must be satisfied beyond reasonable doubtthat the circumstances are such that the thing in question may reasonably be suspected of being stolen or otherwise unlawfully obtained.”

As I have already indicated, the appellant strongly argued, that since there were a number of alternative suspicions or possible explanations that were available on the evidence or facts, other than a reasonable suspicion that the goods were stolen or otherwise unlawfully obtained, therefore the court could not decide that he was satisfied beyond reasonable doubt that it was proper to entertain a reasonable suspicion that the goods were unlawfully obtained. Mr Byrne submitted that if there was an explanation reasonably open for the custody of the things that such would itself raise a reasonable doubt as to the holding of the reasonable suspicion. No authority was cited in support of the proposition. It was argued that such was the situation as a matter of principle. The want of authority in support of the proposition is perhaps explicable, because I do not consider the question would not really arise in practice, having regard to the need of the magistrate to focus on the relevant statutory words “reasonably suspected”. As I have said the reasoning in Anderson and the earlier cases to which I have made reference is against the acceptance of the submission.

There is much case law on the meaning of “reasonable suspicion” in relation to provisions such as the present one. Some of the cases are referred to in the President’s judgment in Anderson, where his Honour, also observed, that it was undesirable to attempt to enumerate all the circumstances which may reasonably attract suspicion to a “thing” found in the possession of a person. That the point specifically raised by the appellant has escaped attention would tend to suggest that the point really could not arise when attention is thus focused on the statutory requirement.

In the present class of case suspicion is not to be confused with proof. When one is relying upon inference it seems to me that to find the statutory suspicion, the evidence and facts found must give rise to a reasonable and positive inference. They must do more than merely give rise to conflicting inferences of equal or similar or even lesser degree of probability so that the choice between them is no more than a mere matter of idle speculation or mere imagination. I am disposed to the view, that it is not enough that the relevant state of mind is compatible with a number of suspicions, some implying lawful custody of the very thing, with one or more consistent with the statutory suspicion.

For the purposes of finding a reasonable suspicion there must be reasonable grounds for the relevant state of mind and the existence of facts which are sufficient to induce such. All that is needed is only some factual basis for the suspicion. If there is such evidence its sufficiency is a question of fact. If the tribunal of fact is able to say that the strongest positive or definite inference is that the thing was unlawfully obtained, then it is entitled to draw that inference as being the reasonable one in the circumstances.

A combination of circumstances may be sufficient to sustain a finding of satisfaction of the proof of the offence, where individually none would be sufficient.

In Hofstetter’s case, Menhennitt J concluded (at 207) that whether the relevant suspicion in fact and reality existed was essentially a question of fact. Suspicion was a state of mind.

The distinction between suspicion and belief was also noted in Tucs v Manley (1985) 62 ALR 460 by Jacobs J when he said (at 461):

“... Not only does ‘suspicion’ carry less conviction than ‘belief’, but to say that a suspicion is ‘reasonable’ does not necessarily imply that it is well-founded, or that the grounds for the suspicion must be factually correct.”

The circumstances in which the thing is found and the behaviour of the person under suspicion are clearly relevant to establishing the offence:O’Sullivan v Tregaskis. The Court said (at 16):

“It is manifestly impossible to enumerate or define all the circumstances that may reasonably attract suspicion to the property, but, for this purpose, regard may be had to the nature of the property, to the circumstances in which it has been found, and to the behaviour of the

defendant, with respect to it ...

Speaking generally, it seems to me that suspicion is commonly, andnot unreasonably, incited by the impression of abnormality or incongruity in the thing being in the possession of the person who has it,Dunleavy (at 92):

“In my opinion, reasonable suspicion may arise from the establish- ment of such a set of circumstances as to the commonsense of mankind would give rise to an apprehension that the [item] found was unlawfully obtained. In considering the question whether reasonable suspicion does arise, no exact limitations can be placed upon the circumstances necessary to give rise to it. I do not think much assistance can be derived from considering reported cases. Time, place, persons, are all important ... and any explanation [the defendant] may offer, are all tobe taken into consideration and cannot be overlooked. Again, suspicion C is a conception of the imagination. It is not a physical fact, and it is not surprising to find that different impressions are produced to the commonsense of mankind from a single array of facts. To require unanimity would be to elevate reasonable suspicion to the plane of circumstantial evidence.”

In Anderson’s case, the President stated that false answers, evasion and prevarication on the part of the person under suspicion may forcify a suspicion which has arisen anyway from the circumstances of the discovery of the thing in custody.

In Hussien v Chong Fook Kam [1970] AC 942, Lord Devlin in drawing a distinction between reasonable suspicion and prima facie proof observed (at 949):

“There is another distinction between reasonable suspicion and prima facie proof. Prima facie proof consists of admissible evidence. Suspicion can take into account matters that could not be put in evidence at all.”

Thus the authorities to which I have made reference do not support the submission made by Mr Byrne and indeed are against it.

The decision of the Victorian Supreme Court in Brebner v Seagar [1926] VLR 166 and relied upon by Mr Byrne, may readily be distinguished on its facts. In that case, Mann J held that the section only applied to the very money which was itself suspected of being actually the subject of a theft. Facts were proved establishing that there had been an actual theft of specific F currency from a particular place. There was no evidence that the money found in the appellant’s possession was part of the money which had been stolen. However, there was actual evidence pointing to the probability of its being part of the change received by him when buying something with a five pound note which had been stolen. Since it was obvious that the change had

not been stolen and since it was held on the facts that the informant could not have supposed it to have been stolen the charge failed. The “suspicion” had no foundation in actual facts and further was matter said to be nothing but idle speculation. Thus the case is not only authority for the “very thing” test; but is also authority for the proposition that where the suspicion can have no foundation in the facts or evidence at all, such cannot amount to the relevant statutory single reasonable suspicion. It is no authority for the multiple suspicions argument advanced by Mr Byrne.

In Hird v Grams; Ex parte Grams [1943] QSR 49, some similar arguments to those advanced by Mr Byrne in the present case were submitted to the court. In that case there was no concrete evidence as to the source of the things yet the evidence of competing hypothesis did not prove fatal to the prosecution. Brebner’s case was distinguished (at 57), upon two grounds, the first being one related to “idle speculation”, the second, based upon the view that the magistrates were “bound to say” that any relevant suspicion had no foundation on the facts. Such an analysis of Brebner also accords with the analysis of that decision by Jordan CJ in Aldridge v Marks (1943) 44 SR (NSW) 69; 61 WN (NSW) 2. In Aldridge, there was actual evidence as to the source of the sum of money found in custody namely, the sale of petrol tickets which had been stolen. The magistrate found as a fact that the cash when found was part of the proceeds of the sale of tickets. Jordan CJ appears to have considered that because “everything” pointed to their being notes for which persons who had sold the tickets had exchanged the moneys which they had received upon the sales unlawful. His Honour held that (at 71; 3) “the section is available only when there is a reasonable suspicion that there has been at least something unlawful in the obtaining of the very thing which the accused had in his custody”.

The decisions to which I have referred appear thus to be decisions on their own facts. They provide no support for a multiple or several possible suspicion view. In each of the cases there was but one found singular reasonable suspicion open; in Brebner the relevant one having no foundation in the facts; in Aldridge where the court’s view was that “everything” in the evidence pointed to a singular source of the notes. The single statutory relevant suspicion was not one open on the facts of any of the cases. Indeed those cases reveal that the money was not the “very thing” for the purposes of s 527C.

In Grant v The Queen (1981) 147 CLR 503, the High Court held that “thing” in the section meant the “very thing”. The court said (at 508) the word “thing” in the section is a reference to the same physical object throughout and the court said “it is that object to which the reasonable suspicion of being stolen or otherwise unlawfully obtained”. In fact, in Grant, there was actual evidence relating to the tracing of the moneys. The court thus concluded that the section did not extend to embrace property other than the original thing actually obtained. The court (at 509) also observed that the facts supplied the further ingredient that the “original thing” had lost its identity as the “thing” when converted into another form of currency or exchanged for another thing and further also when paid into a bank account.

It appears to me that Grant’s case does not support the appellant’s argument. Like the other cases to which I have made reference, certain factual findings were clearly made in relation to evidence proved in relation to the “original thing”. It was not a case of competing possible suspicions in relation to the actual thing (cash) found in custody of the defendant.

The evidence in each of the cases to which I have just referred, specifically indicated that the money, the subject of the charge, was not the same money to which the single original suspicion attached. The evidence in each did not disclose multiple possible suspicions or explanations, but rather a singular suspicion, completely inconsistent with the statutory description of “reasonably suspected”.

In my view, the real question in this case stated is whether there was on the evidence before Gallen DCJ, it was open for him to conclude, as he did, that the charge was made out. In some cases it may be a difficult task to determine whether different conclusions are or but one conclusion is reasonably open. This is not such a case. If there was evidence (and in my view there was) its sufficiency was a matter for his Honour.

It is difficult to conceive of a case, actual evidence aside, where it could besaid that there are a number of possible suspicions of such equal or similar cogency that the choice between them is really one of conjecture or idle speculation. The present case is not one which in any event falls into this situation precluding an affirmative finding of the relevant statutory

“reasonable suspected”.

However, were it necessary to decide, then I consider that there is some substance in the submission of the Crown that once a state of affairs can be characterised as being possible it is open to a reasonable person to entertain simultaneously other plausible suspicions arising from the same material: R v Carter. Further, the Crown alternatively submitted that it did not offend the English language to say that a number of “reasonable suspicions” may be entertained at the same time. In my view in the instant case it is not necessary to decide this point. It is not one, in terms, which arises in the case stated. There is nothing in the case stated to indicate that his Honour had proceeded on an erroneous view as to the meaning of the section including D what was involved in the words “reasonably suspected”. There are no findings of fact inconsistent with or contradictory of a finding of fact that a suspicion was reasonably held.

Thus, even were it necessary or appropriate to consider and examine the question of when, where and in what circumstances there may be a situation of competing possible suspicions, on the facts of this case, the question does not strictly arise.

The issue in the present case is whether on the facts here found, Gallen DCJ was justified in holding as he did, that at the time of the proceedings, it was then proper to entertain a reasonable suspicion that thebank notes in question were stolen or unlawfully obtained. If there was any

evidence the question was one of fact for him to decide.

The appellant has contended that a number of possible hypotheses were open on the evidence including the possibility that the sum of $621,010 was lawfully obtained. His Honour’s findings destroy the validity of such a submission. In any event, such an hypothesis, on the facts so found, scarcely answers the description of a possible suspicion thereby precluding the finding of a statutory reasonable suspicion. In any event it is not necessary for me to express a view since the matter was one for his Honour to consider as a matter of fact. The possibility that the money was lawfully obtained was a question of fact. His Honour’s findings by implication necessarily rejected this possibility.

Next, the argument that the money could have been used for a criminal purpose, is not inconsistent with a reasonable suspicion that the moneys were unlawfully obtained, or alternatively precluded the finding of fact, in fact made.

Further the hypotheses advanced by the appellant are not only not open, in view of the finding of fact, they are not in point. Indeed, they are also inconsistent with his Honour’s findings in relation to the appellant’s explanation to the police for custody of the money. Once it was found that it was proper to entertain a reasonable suspicion that the moneys were unlawfully obtained the existence of competing hypotheses not only ceased to be relevant, but must have already been excluded in the course of the reasoning process involved in arriving at the statutory reasonable suspicion. Thus, as his Honour was satisfied that it was proper to entertain a reasonable suspicion that the bank notes were unlawfully obtained, such explicit finding really involved a rejection of the argument that there was any scope for the existence of competing hypotheses inconsistent with that finding.

On the facts found by his Honour this was a case where it was open to conclude that the relevant statutory reasonable suspicion could be entertained from the establishment of the combination of the circumstances revealed by the facts found. They included the fact that a huge sum of bank notes totalling $621,010 in two bags were found in a cupboard in a private home unit occupied by an unemployed man who claimed that the bank notes came into his custody the day before their seizure, having been received from a person who allegedly had the name Phils, but whose surname, address and telephone number was unknown to the appellant. These matters may also be combined with the further fact that the appellant was allegedly to mind the money for a “couple of days”, having allegedly received $1,000 in advance to do so. In addition, the appellant’s explanations, as to which his Honour made an explicit finding of implausibility and probable lack of truth, were important matters that could be taken into consideration and could not be overlooked in terms of deciding whether there was the relevant reasonable suspicion. Such a suspicion could no doubt be excited by the impression of abnormality or incongruity in the very bank notes found in the custody of the appellant.

No submission were put to the court to suggest that the explanation(s) given to the police were plausible. The man Phils (and there was no evidence as to the existence in fact of such person apart from the appellant’s reference to him) was not called to give evidence.

It may thus be said that there was material to justify Gallen DCJ in holding that at the time of proceedings before him, it was proper then to entertain and to reach the level of reasonable suspicion required, namely,that all the bank notes particularised in the charge were unlawfully obtained. There was in my view ample evidence to justify his Honour concluding as he did, that the charge was made out.

Accordingly, I would propose that the question asked, whether the determination of Gallen DCJ was erroneous in law, should be answered “No in relation to both contentions”. The matter should be remitted to Gallen DCJ to be further dealt with according to law.

Questions in case stated answered “No”.

Solicitors for the appellant: Jeffreys & Associates.

Solicitor for the respondent: Solicitor for the Commonwealth Director of A Public Prosecutions.

B A GRAY,

Barrister.