Good in Custody
What is a charge of ‘Goods in Custody?’
The charge of “goods in custody” refers to offences under s 527C of the Crimes Act of having a connection with goods that are reasonably suspected of being stolen or otherwise unlawfully obtained. As opposed to offences such as larceny, there is no requirement of proof beyond reasonable doubt that the goods are in fact stolen or not that the owner is not legally entitled to them. As a result, a charge of goods in custody is often relied on by prosecuting authorities as a charge of last resort where more serious theft charges cannot be laid.
There are a number of key points concerning offences under s 527C(1):
- There are four different offences under the subsection. Each requires a different set of factual circumstances in order to be proven. Therefore, a mislaid charge under one subsection might be unsustainable. This can be very important for statute of limitations purposes. See Case Study A below.
- The first offence under s 527C(1) is goods in personal custody (s 527C(1)(a)). This has been interpreted to mean “immediate de facto control” (Ex parte McPherson (1933) 50 WN 25). What is important here is that the suspect has the goods in their custody at the time of arrest. If a person is questioned but not arrested or charged while the goods are in their custody, and they are later arrested when the goods are no longer in their custody, the charge cannot stick (R v English (1989) 44 A Crim R 273).
- For a charge under the third subsection under s 527C(1), goods in custody in or on premises (s 527C(1)(c)), there needs to be both knowledge by the person charged of the presence of the goods on the premises as well as the exercise of custody or control over it. The classic case is Filippetti (1984) 13 A Crim R 335, where the accused was charged with possession after a quantity of cannabis was discovered in a couch in the common area of a household with a number of occupants. The prosecution could not prove the exclusive physical control by the accused, so Filippetti was acquitted.
- Section 572C(2) provides a defence where the prosecution case has already been made out. If the defence can prove on the balance of probabilities that the accused had in their own mind no reasonable grounds for suspecting that the goods were stolen or otherwise unlawfully obtained. For an application of this defence, see Case Study B below.
- Timing is everything. Under the Criminal Procedure Act s 179, the prosecution only has six months from the commission of the alleged crime to charge the suspect. Therefore, if the prosecution has laid a charge under the wrong subsection as per paragraph  above, they may not lay a fresh charge under a different subsection if a six months have passed. See Case Study A below.
Case Study A – the exhaust pipes
We represented a man charged with goods in custody under s 527C(1)(a), who was alleged to have stolen a pair of exhaust pipes off a truck and attached them to his own truck. The evidence of the complainant was that the exhaust pipes on his truck had gone missing, and some months later our client had attended the complainant’s work to pick up some stock. The complainant noticed our client’s truck and thought that his missing pipes were on our client’s truck. He took some photos of the truck and contacted the police. The police interviewed our client, who denied taking the pipes. Later, the police attended our client’s residence, where they saw his truck parked on the nature strip. They took some photos of the truck, but they did not see or talk to our client. Our client was arrested some days later, with the truck sight unseen.
When the case came to court, six months had already elapsed. We were firmly of the opinion that our client should have been charged under s 527C(c) if at all, that being goods in or on premises. The Court agreed and dismissed the charges. Because six months had already elapsed, the prosecution was unable to lay fresh charges, and our client could walk free, keep the pipes alleged to have been stolen, and was successful in obtaining an order for his legal costs in light of the weak prosecution case which should never have been pursued in the way that it was.
Case Study B – the Xbox
Another goods in custody case in which the defendant was successful which we had the opportunity to observe was one concerning an Xbox game console. The accused was a young ex-con who had recently come out of jail. He was accused of giving custody of a stolen Xbox to the operator of a pawn shop when he hocked it for cash (s 527C(1)(d)). He came into possession of a stolen Xbox, which he later hocked at a pawn shop. The prosecution case was made out: there was a giving of custody, and the thing was reasonably suspected of being stolen, as the prosecution evidence at the hearing proved that the Xbox which was hocked was the same Xbox as one which was reported missing from the same area some months before. However, a defence was raised that the accused had no reasonable grounds for suspecting that the goods were stolen.
The accused’s story was a bit simple, but believable enough: he had just come out of jail, he and a friend attended a garage sale, the friend out of generosity had bought him the Xbox, and after playing with it for a few months, he had decided to sell it. The prosecution tried to discredit his story by pointing out that the accused could not remember his friend’s full name (he was described as a “drug friend”), and that he could not remember the exact time or location of the garage sale (“I’m terrible with remembering details”). However, the story was believable enough on the balance of probabilities, and the accused obtained the benefit of the doubt and was acquitted.
Charges of goods in custody are often used by prosecuting authorities where the more traditional theft offences cannot be made out. While they might be easier to prove, there are important rules around how these offences can be charged and proven, so it is important to obtain experience legal representatives to handle any goods in custody matter.
The author wishes to acknowledge the paper “Goods in Custody – a Discussion Paper” by Mark Dennis, delivered at the NSW ALS State Conference in 3 July 2003, which has been of much assistance in the preparation of this article as well as in dealing with goods in custody matters in practice.
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