The offence of 'goods in custody' is when a person is unlawfully in possession of property. This is a dishonesty type offence in New South Wales and considered the least serious type of dishonesty offence in NSW.
Section 527C of the Crimes Act (NSW) is the easiest type of dishonesty offence to prove and carries up to 6-months imprisonment and/or $550 fine, also carrying a conviction (criminal record) unless the court imposes a non-conviction type of sentence (section 10 or CRO non-conviction). This is different to the more serious white collar and corporate crime offences.
If the thing in question is a motor vehicle, part of a motor vehicle, vessel or part of a vessel, the maximum penalty is 1-year imprisonment and/or up to $1,100 fine.
To be guilty of the offence of goods in custody, in New South Wales, the police must prove that you had a thing in your custody which may be reasonably suspected of being stolen or otherwise unlawfully obtained. The police must prove this beyond reasonable doubt in order for the court to find guilt. Otherwise the charge will be dismissed based on a 'not guilty' verdict by the Magistrate.
This offence is dealt with in the Local Court summarily. The time limit that police can initiate criminal proceedings to prosecute this charge is within 6-months from the date of the alleged offence. However, if the thing involves the giving of custody of a motor vehicle to a person who is not lawfully entitled to possession of it, the time limit is any time within 2-years after the date of the commission of the offence, according to the statute of limitations for goods in custody offences in NSW.
A common defence arising from goods in custody charges is the defence of satisfising the court on the balance of probabilities that he/she had no reasonable grounds for suspecting that the thing referred to in the charge was stolen or otherwise unlawfully obtained. The relevant time of state of mind is at the time of custody.
Finally, the offence of goods in custody also includes three other types of offences, namely, having a thing in the custody of another person, having the thing in or on premises, whether belonging to or occupied by you or nor, or whether that thing is there for your own use or the use of another, or giving custody of the thing to a person who is not lawfully entitled to possession of it. In addition, the thing must also be a thing which "may be reasonably suspected of being stolen or otherwise unlawfully obtained.
Let's look closer into the offence of goods in custody.
WHAT IS THE MEANING OF "CUSTODY"?
"Custody here means "the immediate de facto control or charge of the article in question". This is reflected in the case of Ex Parte McPherson (1933) 50 WN 25.
In contrast this is narrower than the concept of "possession". "Possession" is where you knowingly have the physical custody or physical control (including de facto control) of it to the exclusion of others not acting in concert. The normal meaning of "possession" does not apply to a section 527C Crimes Act offence.
WHAT AMOUNTS TO A "THING"?
A "thing" in a goods in custody offence can include almost anything, including banknotes, property belonging to someone else, including equipment, tools etc.
If bank notes, the "thing" is the pieces of polymer or coin that will be the thing in question concerning the charge of goods in custody. It is not the unit od currency or measure of value that amounts to the "thing".
If the "thing" has been exchanged for other bank notes via poker machine or casino, the new bank notes received will no longer hold the status of the "thing" in connection with the goods in custody charge. This is assuming the exchange was via legitimate means. This has been decided in the case of Grant v R (1980) 147 CLR 503.
Converting money to make it appear legitimate from otherwise illegal means is also known as money laundering carrying heavier criminal penalties in NSW.
Custody Must be Present at Time of Arrest
To be guilty of a goods in custody offence, the police must be able to prove that you had custody of the thing in question at the time of arrest, as has been explained in the case of R v English (1989) 44 A Crim R 273.
If police seize items from you in order conduct further investigations, the fact the item(s) are taken away from you does not negate your custody of it.
However, if you're arrested for a different matter and police later discover items the subject of goods in custody, then you can argue that you no longer have de facto control or charge of the taken item.
Some examples of this have been given in a discussion paper by Senior Counsel Mark Dennis in his discussion paper on this topic.
Example 1: When an accused is arrested for stealing offences and placed in the back of police vehicle. Police later conduct a search of the accused's car and find goods in custody items. The accused arguably no longer has immediate de facto control or charge of those items.
Example 2: when an accused gets arrested for importing heroin. The accused is then remanded in custody, bail refused. While in custody, the accused's other luggage is taken to the gaol containing heroin. When this luggage is stored at the Gaol in a separate area requiring the accused to get permission to access it, the accused no longer has the requisite immediate de facto control or charge of the heroin.
WHAT AMOUNTS TO "REASONABLY SUSPECTED OF BEING STOLEN OR UNLAWFULLY OBTAINED"?
Importantly, a "reasonable suspicion" is less than a reasonable belief but more than a possibility.
However, there must be some factual basis for the suspicion shown. The suspicion can be based on unreliable information (hearsay material or inadmissible material). The information or material must have some probative value which means the extent it can rationally effect the probability of the existence of the fact in issue. This has been established in the popular case of R v Rondo (2001) 126 A Crim R 562.
For a goods in custody hearing, the reasonable suspicion is a reasonable suspicion of the Magistrate at the time of the hearing in court after hearing all the admissible evidence. It is not the suspicion of the police officer or the accused at the time of the arrest.
That reasonable suspicion must attach to the goods not the person.
Ultimately, the court before which the person is charged must be satisfied beyond reasonable doubt that the thing in question may reasonably be suspected of being stolen or otherwise unlawfully obtained." in the way expressed in the case of Anderson v Judges of the District Court (1992) 27 NSWLR 701 at 715. This is a relatively easy test to satisfy in criminal law.
The court need not be satisfied that the relevant suspicion is the only suspicion, or that it's even the most likely of the possible suspicions. More than one suspicion could be entertained by the Local Court Magistrate listening to the evidence.
Does There Need to be Proof of a Crime in Connection with the Goods in Custody?
The commission of a specific or general offence is not required to be proven in connection with the goods. In other words, in order to be guilty of a goods in custody offence, there does not need to be any evidence of an offence in relation to the thing or goods found.
Finally, the accused person facing a goods in custody charge is not required to have a reasonable suspicion that the thing in question may be stolen or otherwise unlawfully obtained in order to be guilty.