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7.5.11.1 - Charge: Recent possession

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This charge is drafted for use in cases in which:

  • Charges for theft and handling stolen goods are joined in an indictment as alternative charges and tried together; and
  • Evidence of recent possession can support a conclusion that the accused either stole or received the property.

It will need to be modified if the accused is solely charged with theft or handling, or is charged with another offence such as robbery or burglary.

This charge should be given after the judge has directed the jury about the elements of theft and handling stolen goods.

 

In this case, the prosecution has argued that you can conclude from the evidence that [describe evidence of recent possession, e.g. "the stolen televisions were found in NOA’s house"] that NOA either stole those goods, or that s/he received them knowing they were stolen.

Requirements

There are three matters you must be satisfied of before you may draw this conclusion from that evidence.

First, you must be satisfied that NOA possessed the [describe goods]. This requires the prosecution to prove that NOA had custody or control over those goods, and intended to have custody or exercise control. [1]

[Summarise evidence and/or arguments concerning possession.]

Second, you must be satisfied that those goods had been recently stolen. [2] In this case, it is alleged that those goods were stolen from [describe alleged circumstances and date of theft, e.g., "Mr X’s house on 1/1/10"].

It is for you to determine whether the goods the prosecution alleged were found [describe location, e.g., "in NOA’s house"] were stolen goods, and whether they had been stolen "recently".

The term "recently" is a relative one, that varies with the nature of the goods and how often goods of that kind change hands. Frequently circulated goods like coins or bank notes will only remain "recently stolen" for a short period of time, whereas less frequently traded goods, such as a cars or famous paintings, may remain "recently stolen" for months or even years. You must consider whether NOA acquired the goods so recently after they were stolen that s/he must have either stolen the goods himself/herself, or received them knowing they were stolen.

[Summarise evidence and/or arguments concerning whether the goods had been recently stolen.]

Third, you must be satisfied that there is no reasonable explanation for the accused’s possession of the [identify goods].

[If the defence has provided an explanation, add the following shaded section]

In this case, the defence has argued [summarise explanation]. You may not conclude that NOA stole the [identify goods], or received them knowing they were stolen, unless you are satisfied that there is no reasonable possibility that this explanation is true.

[Summarise evidence and/or arguments concerning other possible explanations for the possession of the goods.]

Conclusions

If you are satisfied that the prosecution has proven these three matters, then you may conclude that the accused either stole the [identify goods], or that s/he received them knowing they were stolen.

It is for you to decide whether to draw this conclusion. Even if you are satisfied that the accused was in possession of recently stolen goods and there is no reasonable explanation for that possession, you are not required to draw this conclusion. You will remember what I told you about drawing conclusions earlier. [3]

If you decide that any of the three requirements have not been established, or decide not to draw any conclusion from the accused’s possession of the goods, that does not mean that you must acquit NOA of charges [state charge numbers]. You may still convict him/her of one of those offences if, based on all of the evidence in the case, you are satisfied that all of the elements of that offence have been met.

In making your decision, you should consider all of the circumstances of the case, including the nature and value of the goods and the circumstances in which NOA was found in possession. You should also consider matters such as the time between the alleged theft and NOA acquiring possession, the likelihood that the goods were sold during that period of time, and the existence of any links between NOA and the owner of the goods.

[If the accused chose not to explain his/her possession either to the police or in court, add the following shaded section]

It is important that you bear in mind the fact that the accused has the right to not answer police questions and to not give evidence in court. It would therefore be wrong for you to use the fact that s/he remained silent against him/her in any way.

The fact that a person chooses not to answer police questions, or to give evidence in court, does not mean that s/he has something to hide, or has admitted his/her guilt. That fact may not be used to fill gaps in the evidence led by the prosecution, and does not add to or strengthen the prosecution’s case in any way. It proves nothing at all.

You therefore must not draw any conclusions against the accused for failing to answer police questions or give evidence in court. To use an accused person’s silence in such a way would be to undermine a fundamental right provided by the law.

However, that does not mean that you cannot conclude from a person’s unexplained possession of recently stolen goods that s/he stole the goods, or received them knowing they were stolen. In such circumstances you are not drawing a conclusion from his/her exercise of the right to silence, but from the fact that, after hearing all the evidence, you find that there is no reasonable explanation for his/her possession of those goods.

 

Notes

[1] Where possession is in issue, further assistance on it requirements may be obtained from Charge: Possession of a Drug of Dependence (Common Law Possession).

[2] Where there is an issue about whether goods have been "stolen", assistance may be obtained from Charge: Theft (Extended).

[3] This charge is based on the assumption that the judge has already instructed the jury about circumstantial evidence. It will need to be modified if that has not been done.

 

Last updated: 30 November 2015

See Also

7.5.11 - Recent Possession