Case facts and the police abuse of power

At 12.50am, the accused was at a service station putting petrol in the car. Police had seen the vehicle stopped at the side of the road a little earlier in the evening so they wanted to satisfy their curiosity and speak with the driver. The only way that they could do so was to abuse the powers of random breath test so that they could not only speak with the driver, but also check out the other occupant of the car, find out the names of both person, run some background checks and then allegedly form a reasonable suspicion to search both men and the car.

Police performed the breath test and the client had not had any alcohol to drink. Police should have left him alone and gone about their business. However, they then demanded his licence, performed a background check, and found that he had a minor criminal record. They then purported to exercise their powers under the Law Enforcement Police Responsibilities Act 2002 (NSW) and police searched the men and the car for goods in custody and prohibited drugs.

The client had a credit card in his wallet which was not in his name. He told police that he found it at his place between the cushions of the couch at home. Asked whether he knew the person whose name was on the card, he told them that it was a mate’s card and that he put it in his wallet to give back to him next time he saw him. He was issued with a field court attendance notice to attend court.


Police charges and potential penalties

He was charged with Goods In Custody (reasonably expected of being stolen or unlawfully obtained). The legislation provides that any person who has any ‘thing’ in his custody, or the custody of another person, or in or on premises belonging to him or not, or who gives custody of any ‘thing’ to a person who is not lawfully entitled to possession the thing which thing may reasonably be suspected of being stolen or otherwise unlawfully obtained, is liable on conviction before the Local Court to imprisonment of up to 6 months and a fine of up to $500 or both.

The law therefore takes into account goods found on the person, or where the person has given it to another person to hold or mind, where goods are for example in a car or house and goods for example pawned to a pawnbroker.


Statutory defence

Section 527C(2) of the Crimes Act 1900 (NSW) provides a statutory defence where 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.


Defended hearing

Police served the brief of evidence which ordinarily would have contained the statements of both police officers, the true owner of the credit card, any evidence from the relevant bank if an attempt had been made to use the credit card after the owner parted company with it, and a photo or photocopy of the card proposed to be tendered as an exhibit. In this case, the only document served was a statement from the police officer in charge and a copy of his notebook. At the hearing, the prosecutor attempted to tender a copy of the notebook, however this was self-serving therefore inadmissible. Although a legal challenge could have been mounted to the search, this was clearly a case where the statutory defence applied. The answers given by the client perhaps added to the suspicion of the goods (credit card), however proper questioning at the time by police may have resulted in the police making inquiries with the client’s partner to confirm how and when the card was found, perhaps resulting in no charge being laid.

The accused gave evidence that he lived with his partner in a home unit within a large block of units that was surrounded by other large blocks of units, close to a major university. It was quite common given the transient student population that lounge chairs and other unwanted items were dumped in the rear lane when people moved out. With a friend, he took the lounge to his unit where it was wiped down. This occurred some 3 weeks or so prior to the incident with police. On the Sunday prior to the incident, the couple were looking for the baby’s dummy when the client found the credit card between the cushions of the lounge. He did not recognize the name but thought it could be a friend’s card or that of a friend of a friend. He showed his partner who was more concerned with the screaming baby. Reflecting that the card could have been left in the lounge prior to him bringing it to the unit, he told his partner that he would put it in his wallet and either return it to the owner or hand it to police.

He did not leave home the next day, and neither did his partner. She was on maternity leave and he was unable to work due to a workplace injury. He went for a drive with a friend later that evening, and was spoken to by the officer as set out above. He had not taken the opportunity to drop the card at the police station when he first left home, and in fact had forgotten about it. This would seem to be a reasonable and honest answer. When the police officer first spoke with him, he was still filling the car. He was allowed to go and pay for the petrol prior to the breath test and search. If he had anything to worry about regarding the card, he had the opportunity to throw it away.

At the hearing, there was no evidence in the prosecution case that the card had been lost or stolen. There was a reasonable inference that the card could be stolen. However, the client did not steal the card, nor did he obtain it unlawfully. His partner gave evidence as to the circumstances of him finding the card at home.

A legal argument was then raised that perhaps the accused could still be guilty by misappropriating the card or stealing it by finding it and retaining possession. This argument was quickly dealt with by the criminal defence lawyer who pointed out that an essential element of larceny is a permanent intention to deprive the true owner of the goods. Insufficient time had elapsed since the finding of the card, and insufficient opportunity had existed since that time to hand the card into police, for any claim to be made that he ‘owned’ the card.

The charge was dismissed.


Why Nyman Gibson Miralis?

Without proper legal representation, it is fairly easy for an unrepresented or poorly represented accused to be found guilty due to the suspicion arising from the circumstances of the detection of the alleged offence, the potentially poor choice of words when speaking with police and the lack of expertise in dealing with the rules of evidence, case law and the applicable legislation.


Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law. Contact us if you require assistance.