O'Sullivan v Reedy [1953] HCA 36; (1953) 87 CLR 291 (15 June 1953)

HIGH COURT OF AUSTRALIA

O'SULLIVAN v. REEDY [1953] HCA 36; (1953) 87 CLR 291

Police Offences

High Court of Australia
Williams A.C.J.(1), Webb(2), Fullagar(3), Kitto(4) and Taylor(5) JJ.

CATCHWORDS

Police Offences - Being in possession of property "&which . . . may at any time prior to the making of such charge have been" reasonably suspected of having been stolen or unlawfully obtained at the time of being in his possession or being conveyed by him - Necessity for actual suspicion - Necessity for allegation in complaint - Police Act 1936-1951 (No. 2280 of 1936 - No. 12 of 1951) (S.A.), s. 93 (1).

HEARING

Melbourne, 1953, June 15. 15:6:1953
APPLICATION for special leave to appeal from the Supreme Court of South Australia.

DECISION

The following judgments were delivered:
WILLIAMS A.C.J. This is an application for special leave to appeal from an whereby it was ordered that the appeal be allowed, the order of Mr. Justice Mayo be set aside and the order of dismissal made by the court of summary jurisdiction at Prospect be restored. (at p294)

2. The origin of the proceedings was a complaint laid on 22nd July, 1952, that Wilfred Charles Reedy had in his possession personal property to wit 225 pieces of Baltic red deal which prior to the making of this charge might have been reasonably suspected of having been stolen or unlawfully obtained contrary to the provisions of s. 93(1) of the Police Act 1936-1951. Before a plea was taken from the defendant his counsel, Mr. Pickering, took objection to the sufficiency of the complaint and the magistrate upheld the contention though not on the precise ground that succeeded in the Full Court. There was an appeal to the Supreme Court which was heard in the first instance by Mayo J. who allowed the appeal and remitted the matter to the court of summary jurisdiction for hearing. From the order of Mayo J. there was an appeal to the Full Court which made the order to which I have already referred. (at p295)

3. The application to us for special leave raises the true interpretation of s. 93(1) of the Police Act 1936-1951 (S.A.) and, in particular, the words in that sub-section "may at any time prior to the making of such charge have been reasonably suspected of having been stolen or unlawfully obtained at the time of being in his possession or being conveyed by him". The question is whether the words "might have been" which appear in the complaint are sufficient to support the principal ingredient of the offence or whether this ingredient is only properly alleged if the word "was" is substituted for those words, so that it is necessary to prove that prior to the making of the charge some person had formed a reasonable suspicion that the goods had been stolen &c. (at p295)

4. The Full Court held that the sub-section requires the prosecution to prove an actual suspicion or, as they called it, a "concrete suspicion" actually entertained on reasonable grounds by some particular person at some particular time prior to the making of the charge. This has been the interpretation placed on the sub-section in South Australia ever since the case of Moore v. Allchurch (1924) SASR 111 . The submission of the applicant is that it is not necessary to prove such an actual suspicion. It is sufficient if facts are proved from which the magistrate could reasonably infer that a hypothetical reasonable person in possession of those facts could reasonably have suspected that the goods had been stolen &c. In my opinion, the interpretation placed on the sub-section by the Full Court was right, and I can see no reason for dissenting from anything that was said by the learned Chief Justice in his judgment. (at p295)

5. It was contended that the views which he expressed are inconsistent with those expressed by this Court in Willis v. Burnes [1921] HCA 43; (1921) 29 CLR 511 . This Court was there concerned with the onus of proof under the corresponding section in a New South Wales Act. Evidence had been given of an actual suspicion entertained on reasonable grounds by a constable before the charge was made, and the particular point now raised before us was not before the Court for decision. The reasoning in that case should be regarded as confined to what was actually decided, and it should not be regarded as an authority that is in any way in conflict with the interpretation placed upon the sub-section by the Full Court of South Australia. (at p296)

6. It was also sought to support the application for special leave to appeal by a submission that the Full Court should have applied ss. 22a, 55 and 181 of the Justices Act 1921-1943 (S.A.). The Full Court considered that these sections were not applicable broadly on the ground that, wide as they were, they did not authorise a person to be charged upon a complaint that did not contain the proper ingredients of the offence but raised a false and irrelevant issue and, instead of alleging the suspicion which is the gist of the charge, alleged something else. They accordingly refused to apply these sections. We need not, I think, consider whether they were right or wrong in their refusal, because they were dealing with a particular complaint and their remarks with respect to this complaint do not constitute a sufficient ground for this Court to interfere by granting special leave to appeal. (at p296)

7. In my opinion special leave to appeal should be refused. (at p296)

WEBB J. I agree. (at p296)

FULLAGAR J. I agree. It seems to me that the applicant's contention has for its essential feature the view that the words "may have been" in the section mean "could have been". That appears to me to be a view which it is not possible to entertain, having regard to the reference to time in the section. The true view appears to be, and I would say clearly to be, that which is expressed by the learned Chief Justice of South Australia on p. 36 of the transcript, where he says that the section "uses the subjunctive mood -- 'may have been' - to express the condition or hypothesis which brings the section into operation; but, in order to charge the offence, it is necessary to allege that the prescribed condition or hypothesis has been fulfilled or established. For that purpose the language of the Act has to be transposed into the mood and tense which express a categorical statement of the fact". That interpretation gives a quite different meaning to the section from that for which the applicant contended. It is a simple matter of English grammar. So far as Willis v. Burnes [1921] HCA 43; (1921) 29 CLR 511 is concerned, I agree with what has been said by the learned Acting Chief Justice of this Court. I would only add that the suggestions conveyed by certain words which appear in brackets in what was said by Sir Adrian Knox are in the nature of the merest obiter dicta. I agree that special leave to appeal should be refused. (at p296)

KITTO J. I agree with both the judgments that have been delivered. I have nothing to add. (at p297)

TAYLOR J. I agree with what has already been said and that special leave to appeal should be refused. (at p297)