Willis v Burnes [1921] HCA 43; (1921) 29 CLR 511 (9 November 1921)

HIGH COURT OF AUSTRALIA

Willis Defendant, Appellant; and Burnes Complainant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

9 November 1921

Knox C.J., Gavan Duffy and Starke JJ.

Mack K.C. (with him McGhie), for the appellant.

E. M. Mitchell, for the respondent.

Knox C.J.

This appeal raises the question of the correctness of the decision of Wade J. on a case stated by a Magistrate. His Honor decided that, in a prosecution under sec. 27 of the Police Offences Act 1901, when it has been established to the satisfaction of the Magistrate that the property may reasonably be suspected of having been stolen and that the defendant is knowingly in possession of that property, then the onus lies on the defendant of giving an account of how he came by it—that is, of satisfying the Magistrate that he came by it honestly. That decision appears to me to be quite correct. I desire to adopt, with slight alteration, what Gordon J. said in Ex parte Potts[1]:—"In my opinion the section throws on the Crown the onus in the first instance of showing that the person charged was in possession of goods, and that those goods were" (this should read "might be") "reasonably suspected of being stolen or unlawfully obtained. It seems to me that it is not necessary to show that the goods were in fact stolen. The offence is that the person charged is in possession of goods which are" (this should read "may be") "reasonably suspected of having been stolen, and then fails to give a satisfactory account of how they came into his possession. It has been said in one case the offence is not being in possession of the goods, but failing to give a satisfactory account of their possession, when found in possession of goods which are reasonably suspected of having been stolen. In my opinion the onus lies on the Crown first of all to show the goods were" (this should read "might be") "reasonably suspected of having been stolen; when that has been shown the onus is shifted, and it becomes necessary that the person found in possession of these goods should give an account to the satisfaction of the justice how he came by the same." I think that that statement is literally in accordance with the provisions of the section. A new offence was created by the section and the words of the section are conclusive as to what the offence is, as to the manner of proving it and as to the onus of proof. I do not think that the cases cited by Mr. Mack are really in point in this case. In those cases it lay upon the Crown to establish a fact, and if the Crown failed to establish it beyond reasonable doubt, the jury would acquit the accused. But in the present case the statute deliberately provides that if certain facts are established the defendant shall be convicted unless he satisfies the Magistrate of certain other matters. In this case the Magistrate says that the defendant did not satisfy him of those matters, and Wade J. held that in that event the Magistrate should have convicted the defendant, and I agree with him.

Gavan Duffy J.

I agree.

Starke J.

I agree.

Appeal dismissed with costs.

Solicitor for the appellant, R. J. O'Halloran, Tamworth, by R. H. Levien.

Solicitor for the respondent, J. V. Tillett, Crown Solicitor for New South Wales.

[1] 31 N.S.W.W.N., 1, at p. 2.