Recent Possession

[4-000] Suggested direction

To prove that [the accused] stole the property or got it knowing that it was stolen, the Crown relied on [the accused’s] possession of the recently stolen property and the absence of any reasonable explanation for that possession. Lawyers call this “recent possession”.

Where an accused person is in possession of property which has been recently stolen and [the accused] either gives no explanation as to how [he/she] came to have it, or gives an explanation which could not reasonably be true, then you are entitled, but not obliged, to conclude either that [he/she] stole it or that [he/she] received it knowing it to be stolen. It is the possession of property recently stolen which calls, without more, for an explanation. In the absence of some explanation which you accept is reasonably possible, the conclusion may be reached that [the accused] stole or received the property.

[As to Possession, see [4-020]].

[As to differing versions, see Conflicting Explanations [4-030]].

[As to Recency where there is a live issue, see [4-050]].

In deciding —

1.: whether the stealing was recent;
2.: whether there has been any reasonably possible explanation; and
3.: whether the inference of guilt should be drawn,

the whole of the explanation given by [the accused] and all the circumstances should be considered. These include: the period which has elapsed since the property was stolen; the nature and value of the property; whether the property is memorable or a common item; whether the circumstances in which it was obtained are likely to be remembered; and what is known of the circumstances in which [the accused] obtained it. An explanation is not reasonably to be expected if [the accused] exercises [his/her] right not to respond to questions from persons known by [him/her] to be police officers.

In summary, before you can draw the inference against [the accused] that [he/she] stole the property or that [he/she] received it knowing it to be stolen, you must be satisfied of each of the following beyond reasonable doubt —

1.: the property, the subject of the charge, was in the possession of [the accused];
2.: the property was stolen;
3.: it was stolen recently;
4.: no explanation which you are prepared to accept as reasonably possible has been given by [the accused] or appears from all the circumstances, these calling for some explanation;
5.: having considered the whole of the explanation given and all the circumstances, the conclusion should be reached that [the accused] stole the property or received it knowing it to be stolen, no other conclusion being reasonably available.

If the Crown fails to satisfy you beyond reasonable doubt of any of these matters, then the conclusion of guilt must not be reached. If you think that the circumstances do not require an explanation or that the explanation of [the accused] or the explanation appearing from all the circumstances might reasonably be true, the conclusion may not be reached. You should not consider the issue of recent possession further.

Where appropriate

Even if you reject the argument based on “recent possession” you still have to consider all the other evidence on which the Crown relies.

[4-010] Notes — general

1.: See: R v Jorgic (1962) 80 WN (NSW) 761 at 763; R v McKenna (1964) 81 WN (Pt 1) (NSW) 330 at 332; R v Miller (unrep, 16/11/77, NSWCCA); R v Bellamy [1981] 2 NSWLR 727; Bruce v The Queen (1987) 61 ALJR 603; R v Sinanovic [2000] NSWCCA 395.
2.: Bellamy’s case contains a very full discussion of recent possession. Where there is no other evidence available, apart from recent possession, then the jury should be instructed that if it takes the view that the accused’s explanation might reasonably be true, then it must acquit the accused: R v Bellamy [1981] 2 NSWLR 727.

[4-020] Notes — possession

The direction as to possession will necessarily vary according to the circumstances of the case. It is well established that the Crown does not have to establish possession of the subject property in the same way as it does for crimes involving possession, for example, of drugs. In this context, see s 7 of the Crimes Act 1900 and the deeming provision therein.

With respect to the doctrine of recent possession, the Crown must establish some form of physical possession or dominion (or control) over the property: R v Saleam (1989) 41 A Crim R 108 at 114. The possession will be sufficient even if the property is in the actual physical possession of a person over whom the accused has sufficient control, or with whom the accused has such a relationship (for example, bailment), that the property will be handed over to the accused upon request: R v Cottrell [1983] 1 VR 143 at 148–149.

The nature of the allegedly stolen property generally dictates the circumstances which the Crown is required to prove to establish recent possession. Thus if the accused has actual manual control over a motor vehicle (by driving it) that would be sufficient to establish possession, as would the fact that the vehicle was garaged in premises over which the accused alone had the right to take such actual manual control: R v McCarthy (1993) 71 A Crim R 395 at 400–401.

The suggested direction on possession in [3-700] may be adapted to provide an appropriate direction for recent possession, depending upon the particular circumstances of the case.

[4-030] Suggested direction — conflicting explanations

The matter which you have finally to determine, if there is no other basis for convicting apart from recent possession, is whether you think that any of [the accused’s] explanations might reasonably be true. If so, the Crown has not proved guilt beyond reasonable doubt.

[4-040] Notes — conflicting explanations

1.: Often there are different, sometimes conflicting, versions given by the accused as to how the stolen property came into his or her possession, for example, one explanation given to the police on arrest, another given by evidence or statement at the trial. In R v Bellamy [1981] 2 NSWLR 727, Reynolds J suggested that the explanation given at the trial is the one to be examined by the jury, though its credibility may be affected by an earlier explanation. Chief Justice Street in Bellamy’s case (at 731) put the matter somewhat differently, and suggested the above direction [4-030].
2.: Failure to give an explanation does not alone give rise to an inference of guilt in the absence of the other circumstances set out in the suggested direction at [4-030]: Bruce v The Queen (1987) 61 ALJR 603.

[4-050] Suggested direction — recency

You have to consider and decide whether the time that has elapsed between the theft of the property and the finding of it in the possession of [the accused] is such a short time that you are prepared to reach the conclusion of guilt from that fact.

When considering the question, you should take into account the value of the property in question and whether you would expect it to change hands frequently. Thus it might be easier to reach the conclusion of guilt if the property stolen was a valuable painting or a valuable piece of jewellery or a valuable motor vehicle than if it were a bank note or a piece of gardening equipment or a common tool.

[4-060] Suggested direction — where no alternative charge

See: R v McCarthy (1993) 71 A Crim R 395.

As I said to you, if you are satisfied that [the accused] had possession of the property in question when it had been recently stolen, you would be entitled to find that [he/she] was either the thief or the receiver of it. In this case, [the accused] has not been charged with being a receiver and you may therefore find [him/her] “guilty” only if you are satisfied beyond reasonable doubt that [he/she] was the actual thief. If it is reasonably possible that somebody else had already stolen it before [the accused] was found with it in [his/her] possession, then [he/she] must be found “not guilty”.

[4-070] Notes — recency

1.: As to the recency of the stealing of the property, there are cases in which goods are found in the possession of the accused very shortly after their theft (for example, when he or she is arrested at the scene of the theft or shortly after leaving it). But more often some time has elapsed between the theft and apprehension. This raises the question of recency. In R v Smale (unrep, 15/8/86, NSWCCA) the police found a stolen car in the accused’s garage five months after the theft. The Court of Criminal Appeal held that this fell within the concept of recency. If the question of recency appears likely to trouble the jury, the above direction is suggested. In Smale, Lee J (as he then was) said —

I agree with his Honour’s observation, but would say that in most of the cases that are likely to come before the courts, it would be appropriate to let the question of recency go to the jury because it is not a word of any precise significance so far as time is concerned and it can legitimately mean different things to different people. The jury should therefore rule upon it, not the judge. It is certainly not to be understood as importing the notion of “very recently” except where the nature of the property requires that view.
2.: In motor vehicle cases, the degree of recent possession need not be nearly as close to the theft as in the case of more common items such as bank notes. It does not necessarily mean “very recently” except where the nature of the property requires it: R v Mahoney (2000) 114 A Crim R 130.
3.: Where larceny and receiving of the same property are charged in alternative counts it may be appropriate to give the special verdict direction under s 121 of the Crimes Act 1900: see [5-6120].

Criminal Trial Courts Bench Book — Trial Instructions R–Z