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7.5.11 - Recent Possession

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Overview

  1. According to the "doctrine of recent possession", when a person is found in possession of recently stolen property, and cannot provide a reasonable explanation for that fact, the jury may infer that he or she either stole the property or received the property knowing that it was stolen (Bruce v R (1987) 74 ALR 219; Trainer v R (1906) 4 CLR 126; R v Langmead (1864) Le & Ca 427).
  2. While referred to as a "doctrine", this is simply a matter of the jury drawing an inference from a common piece of circumstantial evidence (that the accused possessed recently stolen property) (Raptopoulos v Police [2005] SASC 374; Schiffmann v R (1910) 11 CLR 255; R v Trifilo [2009] VSCA 194; Gilson v R (1991) 172 CLR 353; Trainer v R (1906) 4 CLR 126).
  3. Despite being called the doctrine of "recent possession", the inference is drawn from possession of recently stolen property, rather than recently taking possession of stolen property (R v Smale NSW CCA 15/8/1986).
  4. Evidence that the accused possessed recently stolen property does not give rise to a presumption of guilt, or place any legal or evidentiary burden on the accused. The onus always remains on the prosecution to prove the elements of the relevant offence (R v Bellamy [1981] 2 NSWLR 727; R v Beljajev [1984] VR 657; R v Cross (1995) 84 A Crim R 242; R v Wanganeen (1988) 50 SASR 433).

    What Inference May the Jury Draw?

  5. Evidence that the accused possessed recently stolen property may support an inference that:
    1. the accused stole the property; or
    2. the accused knowingly received stolen property (Trainer v R (1906) 4 CLR 126; R v Langmead (1864) Le & Ca 427; Gilson v R (1991) 172 CLR 353).

    Application of the Doctrine

  6. The doctrine of recent possession does not only apply to cases where theft and handling stolen goods are charged as alternatives. The doctrine may apply where a person is charged with just one of those offences. The fact that evidence that the accused possessed recently stolen property might also support the uncharged offence does not mean the jury cannot use evidence of recent possession as part of the evidence leading to guilt (see R v Henstridge & Ors SA CCA 19/6/1998).
  7. While the doctrine of recent possession is most often used in relation to charges of theft or handling stolen goods, the same form of inferential reasoning may also apply to other larceny offences, such as armed robbery and burglary (R v Schama & Abramovitch (1914) 11 Cr App R 45; R v Short & Ors (1928) St R Qd 246; R v McCarthy (1984) 13 A Crim R 13; Gilson v R (1991) 172 CLR 353; R v Connolly (No 2) [1991] 2 Qd R 661; R v Ugle (1989) 43 A Crim R 63).

    Requirements

  8. Before the jury can draw an inference from the accused’s possession of recently stolen property (a "recent possession inference"), it must be satisfied of three matters:
    1. That the accused was in possession of property;
    2. That the property was recently stolen; and
    3. That there was no reasonable explanation for the accused’s possession of the stolen property.

    Possession of property

  9. The prosecution must establish that the accused had possession of the property in question (R v Cross (1995) 84 A Crim R 242; R v Khalil (1987) 44 SASR 23; R v Cottrell [1983] 1 VR 143).
  10. This requires the prosecution to prove that the accused:
    1. Had custody of or control over that property; and
    2. Intended to have custody of or exercise control over that property (DPP v Brooks [1974] AC 862; He Kaw Teh v R (1985) 157 CLR 523; R v Maio [1989] VR 281; R v Mateiasevici [1999] 3 VR 185. See also R v Cross (1995) 84 A Crim R 242; R v Saleam (1989) 41 A Crim R 108; R v Cottrell [1983] 1 VR 143; R v Khalil (1987) 44 SASR 23).
  11. The prosecution may not rely on principles of deemed possession [1] to prove possession for the purposes of this doctrine (R v Cross (1995) 84 A Crim R 242; R v McCarthy (1993) 71 A Crim R 395).
  12. The fact that a third party has physical possession of the property does not mean it cannot have been "possessed" by the accused. For example, if the accused has sufficient control over the third party, such that the property will be available to him or her upon request, the accused "possesses" that property (R v McCarthy (1993) 71 A Crim R 395; R v Saleam (1989) 41 A Crim R 108; R v Cottrell [1983] 1 VR 143).
  13. The prosecution does not need to prove that the accused was actually caught with the property in his or her possession. It is sufficient to prove that the accused possessed the property at a relevant time (R v Cross (1995) 84 A Crim R 242; R v Saleam (1989) 41 A Crim R 108).
  14. While the prosecution will usually rely on direct evidence to establish possession, circumstantial evidence or admissions may also be sufficient (R v Cross (1995) 84 A Crim R 242; R v Saleam (1989) 41 A Crim R 108).
  15. For further information concerning possession, see "Common Law Possession" in Possession of a Drug of Dependence.

    Recently stolen property

  16. The doctrine of recent possession only applies if the jury is satisfied that the property was recently stolen (Trainer v R (1906) 4 CLR 126; R v Trifilo [2009] VSCA 194; R v Cross (1995) 84 A Crim R 242; R v Sinanovic [2000] NSWCCA 395; R v Bruce [1988] VR 579).
  17. There are two aspects to this requirement:
  18. For information on when property is stolen, see Theft.
  19. The term "recent" depends on the nature of the property. Frequently circulated property such as bank notes remain "recently stolen" for a far shorter period than less frequently traded objects like cars or clothing (R v Sinanovic [2000] NSWCCA 395; R v McCaffery (1911) VLR 92; R v Smale NSW CCA 15/8/1986; R v Mahoney [2000] NSWCCA 256; R v Khalil (1987) 44 SASR 23; R v Beljajev [1984] VR 657).
  20. The judge must initially determine, as a question of law, whether it is open to the jury to find that the property was "recently stolen". Once the judge makes that determination, it is for the jury to determine, based on the facts, whether that was the case (R v Bellamy [1981] 2 NSWLR 727; R v Wanganeen (1988) 50 SASR 433; R v Smale NSW CCA 15/8/1986; R v Beljajev [1984] VR 657).
  21. The prosecution may prove that goods were recently stolen by direct evidence, or by other circumstantial evidence concerning the nature of the goods and the circumstances of the accused’s possession (R v Trifilo [2009] VSCA 194).

    Absence of a reasonable explanation

  22. The jury may draw an inference on the basis of recent possession if there is no other reasonable explanation for the accused’s possession of the property that is consistent with innocence (Bruce v R (1987) 74 ALR 219).
  23. Due to the operation of the common law and statutory provisions associated with the right to silence, the inference is drawn due to the unexplained possession of recently stolen property, rather than the accused’s failure to give an explanation for that fact (see, e.g., Bruce v R (1987) 74 ALR 219).
  24. A distinction can be drawn between cases in which the accused attempts to explain his or her possession of the property, and those in which no explanation is given. These are addressed in turn below.

    Attempts to explain possession of recently stolen property

  25. Where the accused provides an explanation for his or her possession of recently stolen property, the jury may only draw a recent possession inference if it rejects that explanation as a reasonable possibility (R v Weetra SA CCA 7/8/1996; R v Aves [1950] 2 All ER 330; R v Glen [1973] VR 809; R v Bellamy [1981] 2 NSWLR 727).
  26. The prosecution must lead evidence of any explanations the accused has offered. Such statements are not excluded on the basis of being self-serving hearsay (Hudson v R [2003] WASCA 304; Rymer v R [2005] NSWCCA 310. But c.f. Barry v Police [2009] SASC 295).
  27. The jury should consider all explanations the accused has provided, and whether any of those explanations may be true. There is no principle that the jury may only consider one explanation. However, inconsistencies between various explanations may affect the accused’s credit or the plausibility of the explanation (R v Wanganeen (1988) 50 SASR 433; R v Bellamy [1981] 2 NSWLR 727).
  28. The jury cannot use the fact that the accused provided an explanation for the first time at trial as a reason for rejecting that explanation (R v Beljajev [1984] VR 657; Petty v R (1991) 173 CLR 95). See "Failure to Raise a Defence" in Silence in Response to People in Authority.
  29. Rejection of the accused’s explanation does not depend on the jury deciding that the explanation was deliberately false. The jury may reject an explanation due to finding that it is mistaken (R v Weetra SA CCA 7/8/1996; R v Aves [1950] 2 All ER 330; R v Glen [1973] VR 809; R v Bellamy [1981] 2 NSWLR 727).
  30. However, where the jury finds that an explanation was deliberately false, this may also allow the jury to use "consciousness of guilt" reasoning. The judge must be careful when directing the jury about this possibility to ensure that use of a rejected explanation as a lie evidencing consciousness of guilt does not involve "bootstraps" reasoning. For this reason, judges should consider only give both a "recent possession" direction and a "consciousness of guilt" direction in appropriate cases (see R v Zheng (1995) 83 A Crim R 572; R v Laz [1998] 1 VR 453; R v Sirillas [2006] VSCA 234; R v Beljajev [1984] VR 657; R v Wanganeen (1988) 50 SASR 433). The availability of “consciousness of guilty” reasoning in relation to a rejected explanation will depend on whether the prosecution has given notice of its intention to rely on that evidence and the judge’s grant of leave to rely on the evidence for that purpose. See Jury Directions Act 2015 s20.

    Failure to provide an explanation

  31. Where the accused fails to provide an explanation for his or her possession of recently stolen property, the jury may only draw a recent possession inference if it is satisfied that there was no reasonable explanation for that failure (Bruce v R (1987) 74 ALR 219; R v Sinanovic [2000] NSWCCA 395).
  32. It seems that exercising the right to silence does not provide a reasonable explanation for failing to explain the possession of recently stolen goods (see, e.g., Bruce v R (1987) 74 ALR 219; R v Wanganeen (1988) 50 SASR 433; Petty v R (1991) 173 CLR 95 per Brennan J).
  33. The doctrine of recent possession does not constitute an exception to the right to silence. An adverse inference on the basis of recent possession is not drawn from the exercise of the right to silence, but from the accused’s unexplained possession of recently stolen property (Bruce v R (1987) 74 ALR 219; Raviraj v R (1987) 85 Cr App R 93; R v Beljajev [1984] VR 657).

    Consequences of Meeting the Requirements

  34. Where the jury is satisfied that the three requirements outlined above have been met, they may infer that the accused either stole the property or received the property knowing that it was stolen (Bruce v R (1987) 74 ALR 219; Trainer v R (1906) 4 CLR 126; R v Langmead (1864) Le & Ca 427).
  35. Early authorities suggested that the prima facie inference was that the accused stole the property (see, e.g., Trainer v R (1906) 4 CLR 126 per Griffith CJ). However, it is now recognised that there is no such presumption (Maslin v Searle [2010] WASC 146).
  36. The jury is not required to draw any inference. The doctrine of recent possession simply describes a reasoning process that is open to the jury, upon the satisfaction of certain requirements (R v Schama & Abramovitch (1914) 11 Cr App R 45; R v Ugle (1989) 43 A Crim R 63; R v Bruce [1988] VR 579; R v Bellamy [1981] 2 NSWLR 727).
  37. In determining whether to draw a recent possession inference, and where to draw a further inference that the accused committed one offence rather than another, the jury should look at all of the circumstances of the case, including:
  38. The consequences of drawing an inference will depend on what offence(s) the accused is charged with, and the nature of the inference drawn. For example:

    When to Direct the Jury About Recent Possession

  39. A direction about the doctrine of recent possession is not required in all cases in which the accused is found in possession of stolen goods. The need for a direction will depend on:

    Content of the Direction

  40. A direction on the doctrine of recent possession should:
  41. The judge must make it clear that the directions describe an inference the jury may draw, and does not describe an inference the jury must or should draw (R v Schama & Abramovitch (1914) 11 Cr App R 45; R v Ugle (1989) 43 A Crim R 63; R v Bruce [1988] VR 579; R v Bellamy [1981] 2 NSWLR 727).
  42. The judge should not tell the jury that it may use evidence of recent possession to infer "guilty knowledge". Instead, the judge should explain the specific inference the jury may draw in the case (i.e., that the accused stole the property or knowingly received it) (Ryman v R SA CCA 3/10/1991).
  43. The judge should direct the jury about the meaning of the words "recent" and "possession" in all cases where the prosecution relies on the doctrine (R v Khalil (1987) 44 SASR 23; R v Beljajev [1984] VR 657; c.f. R v Saleam (1989) 41 A Crim R 108).
  44. Where the evidence leaves open two or more dates on which the accused may have possessed the property, the judge must:
  45. The judge must be careful to avoid pre-judging questions of fact. It is a matter for the jury to decide whether the accused had possession of the goods and whether those goods were recently stolen (R v Beljajev [1984] VR 657).

    Other possible explanations

  46. When explaining the third requirement, the judge should direct the jury that they may only draw a recent possession inference if they can exclude other reasonable explanations that are consistent with innocence. This includes any explanations offered by the accused or that arise from the circumstances of the case (R v Wanganeen (1988) 50 SASR 433).
  47. Where the accused has provided an explanation, the judge must explain that the jury cannot draw a recent possession inference if they find that the explanation may reasonably be true. However, even if the jury cannot exclude the possibility that the accused’s explanation is true, they may still convict him or her if there is other evidence which, in conjunction with the evidence of recent possession, establishes his or her guilt (R v Bellamy [1981] 2 NSWLR 727, R v Tribett NSW CCA 13/6/1991).
  48. The judge must ensure the jury does not confuse an explanation for the possession of recently stolen items (requirement three) with a denial that the items were stolen at all (requirement two). This will be particularly important in cases where the property in question has no distinguishing marks, and the accused asserts that he or she acquired the property legitimately. In making such an assertion, the accused may (depending on the circumstances) be arguing:

    Identify matters relevant to drawing the inference

  49. The judge should identify matters to be considered by the jury when deciding whether or not to draw a recent possession inference. These may include:

    Onus of proof

  50. Judges must ensure that their directions on recent possession do not undermine the onus of proof. In particular, they must not:
  51. Judges should not refer to the "doctrine" of recent possession, as this may suggest that the relevant principle is a rule of law, rather than an application of the general principles of circumstantial evidence (R v Bellamy [1981] 2 NSWLR 727 per Reynolds JA; R v Ugle (1989) 43 A Crim R 63. See also R v Wanganeen (1988) 50 SASR 433).

    Standard of proof

  52. At common law, judges were required to direct the jury that the three requirements of recent possession must be proved beyond reasonable doubt before the jury could use evidence of recent possession (R v Cross (1995) 84 A Crim R 242; R v Wanganeen (1988) 50 SASR 433).
  53. It is not clear whether this was a special rule of the doctrine of recent possession, or an application of the principles from Shepherd’s case to essential intermediate facts (But see Sartori v Trent, Unreported, WASC, 23/8/1996; F v Forbes [2010] WASC 252).
  54. Under the Jury Directions Act 2015, the only matters which need to be proved beyond reasonable doubt are the elements and the absence of any defences (Jury Directions Act 2015 s61). It therefore appears that judges can no longer require proof of the three requirements of recent possession beyond reasonable doubt before the jury draws an inference from evidence of recent possession. However, as a form of circumstantial evidence, the jury must still exclude hypotheses consistent with innocence.

    Right to silence

  55. When directing a jury about the doctrine of recent possession, judges must take great care not to breach the common law or statutory prohibitions (Evidence Act 2008 s89) on drawing adverse inferences from pre-trial silence (see Silence in Response to People in Authority).
  56. To avoid breaching these prohibitions, it is important that judges make it clear that the recent possession inference is based on the unexplained possession of recently stolen property (rather than the accused’s failure to give an explanation for that fact) (see, e.g., Bruce v R (1987) 74 ALR 219).
  57. Depending on the circumstances, a judge may also need to give one of the following charges:

 

Notes

[1] E.g., Under the Drugs, Poisons and Controlled Substances Act 1981 s5, the accused is ‘deemed’ to be in possession of drugs in certain circumstances.

[2] See Crimes Act 1958 s88A. This provision only applies to trials that commenced on or after 13 October 2004. See "Theft and Handling" in Handling Stolen Goods for further information about this issue.

Last updated: 30 November 2015

In This Section

7.5.11.1 - Charge: Recent possession

See Also

7.5 - Dishonesty and Property Offences

7.5.1 - Theft

7.5.2 - Robbery

7.5.3 - Armed Robbery

7.5.4 - Burglary

7.5.5 - Aggravated Burglary

7.5.6 – Home Invasion

7.5.7 – Aggravated Home Invasion

7.5.8 – Carjacking

7.5.9 – Aggravated Carjacking

7.5.10 - Handling Stolen Goods

7.5.12 - Obtaining Property By Deception

7.5.13 - Obtaining a Financial Advantage By Deception

7.5.14 - Making or Using a False Document

7.5.15 - Blackmail

7.5.16 - Criminal Damage

7.5.17 - Criminal Damage Intending to Endanger Life

7.5.18 - Criminal Damage With a View to Gain

7.5.19 - Arson

7.5.20 - Arson Causing Death

7.5.21 - Intentionally or Recklessly Causing a Bushfire