Case facts
In August 2011, a laptop computer was stolen from a property in the western suburbs of Sydney. Around September 2011, a person offered the computer for sale to our client. The price seemed reasonable for a second hand computer, and the person selling it was able to demonstrate that he had a password for it. There were no identifying features, such as engraved names or other details. The client paid cash for it and did not get a receipt. In April 2012, the client pawned the computer at a Pawnbroker. He supplied his correct name and address as well as forms of identification – hardly the act of someone knowingly disposing of stolen goods.
The serial number of the computer was entered into the second hand goods computer system which is checked by police against their records.
Police investigation
The computer came up as being stolen and police commenced their investigation in early April 2012. In May 2012, police contacted our client and told him to attend the police station where they wanted to interview him in relation to stolen goods. He attended, and took part in an interview, telling police the circumstances under which he bought the computer and giving police the first name and approximate address of the ‘seller’.
Police tracked down someone matching that name, description and address and took a statement from him. The person was known to police for “property related matters” – which probably means that he is a thief or receiver of stolen goods. Instead of cautioning and questioning the man, they asked him if he sold a stolen computer to our client. Not surprisingly, he told police that he didn’t know anything about it and although he knew our client, he had not seen him for more than a year.
Police failed to perform fingerprint or DNA testing on the computer. They also failed to try and confirm with our client that the person they spoke with was the person that sold him the computer.
The arrest
Notwithstanding the poor investigation, police commenced proceedings against our client for the offence of Goods In Custody pursuant to section 527(1)(a) Crimes Act 1900. The potential penalties include up to 6 months imprisonment and or a fine of up to $550 – higher penalties apply in the case of a motor vehicle or vessel. Our client pleaded not guilty to the police charges and the matter was set down for a defended hearing in the local court.
Preparation for defended hearing
As an accredited specialist in criminal law, the senior lawyer was able to instantly see that the current charge could not be proven. The legislation for Goods In Custody is divided into four subsections which focus on the time and place of the custody of the ‘goods’.
527C(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 our 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.
The statutory defence is outlined in subsection (2):
“It is sufficient defence to a prosecution for an offence under subsection (1) if the defendant satisfies the court that he or she had no resalable grounds for suspecting that the thing referred to in the charge was stolen or otherwise unlawfully obtained.”
In the case of R v English (1989) 17 NSWLR 149 it was held that a person charged with personal custody under subsection (a) must have custody of the goods at the time of the arrest. In this case, the client no longer had the stolen laptop. The correct charge would have been pursuant to s.527C(1)(d) because unless he was the true owner, the pawnbroker was not entitled to possession of the laptop. In English, the following question was asked and answered by way of stated case:
“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?” Gleeson CJ noted at p.156,
“If s.527C(1)(a) covers the case of a person who once had the relevant goods in his custody, but later ceased to have custody of them, what is the need for a provision such as s.527C(1)(d)?”
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 stated case in the affirmative.”
A six month statute of limitations apples to this type of offence which meant that when the hearing came up in November 2012, police were unable to re-charge the client with a more appropriate charge as six months had elapsed since the goods were pawned.
However, this was not simply a matter of police charging the client with the wrong offence – he was still able to rely upon the statutory defence if police had realized their mistake. The botched investigation did not help the police case. Given that our client had prior good character, used his correct name and details when pawning the goods, attended the police station upon request and took part in an interview having been cautioned that he did not have to do so, and having raised with police that he was shown a password to access the computer and had met the seller before, it all tended to support his claim that he had no reasonable grounds for suspecting that the goods were stolen.
Notwithstanding the absolute defence available, we still had to prepare for the possibility that police laid the correct charge up to the start of October 2012 in which case the statutory defence would be applied, and thereafter to prepare a costs application for the police to pay our client’s reasonable legal expenses pursuant to sections 213 and 214 Criminal Procedure Act.
Defended hearing
The criminal defence solicitor and crime expert provided the police prosecutor with a copy of the English’s case and a copy of the costs submissions prior to the scheduled hearing. Police offered no evidence and the case was dismissed.
Costs application
Upon the case being dismissed, application was made for legal costs.
214 Criminal Procedure Act
(1) Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following:
(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,
(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner,
(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought,
(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs.
Reliance was placed on subsections (1)(b),(c) and (d). “Where on the prosecutor’s own version of the facts it is clear that the proceedings must fail, it may properly be said that the proceeding lacks reasonable cause”: Conceri v Taylor (1994) 123 ALR 667 at 676.
The proceedings under s.527C(1)(a) could never have succeeded. There was no suggestion that there was anything constituting bad faith, or unreasonable or improper manner. However, there was no need that such factors exist. Subsection (c) was able to be relied upon due to the poor investigation.
Subsection (d) was able to be relied upon because statements of the owner of the laptop and from the pawnbroker were only served 7 days prior to the hearing – in contravention of sections 183 and 188 Criminal Procedure Act 1986. The contravention meant that even if police had laid the correct charge, they would have been precluded from leading evidence to establish their case.
The Local Court Magistrate made an Order for police to pay our client’s legal costs.
Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law. Contact us if you require assistance.
