7.5.1.8 - Recent Possession
7.5.1.8.1 – Bench Notes: Recent Possession1
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.
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Evidence that the accused possessed recently stolen property may
support an inference that:
i)
the accused stole the property; or
ii)
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).
This document was last updated on 30 November 2015.
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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:
i)
That the accused was in possession of property;
ii)
That the property was recently stolen; and
iii)
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:
i)
Had custody of or control over that property; and
ii)
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).
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11. The prosecution may not rely on principles of deemed possession2 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 109).
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 109).
15. For further information concerning possession, see “Common Law
Possession” in Bench Notes: 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:

The jury must be satisfied that the property was “stolen”; and

The jury must be satisfied that the stealing was “recent”.
18. For information on when property is stolen, see Bench Notes: 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
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.
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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).
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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 Bench Notes: 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).
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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:

The nature of the property;

The circumstances in which the accused was found in
possession of the property;

The time between the alleged theft and the accused acquiring
possession of the property, and the likelihood that the property
was sold in that period; and

The existence of any links between the accused and the victim
of the theft (see Raptopoulos v Police [2005] SASC 374; R v
Connolly (No 2) [1991] 2 Qd R 661; Laurens v Willers [2002]
WASCA 183).
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:

Where the jury infer that the accused stole the property in
question, they may convict him or her of a charge of theft.
Where they infer that the accused received the property
knowing that it was stolen, they may convict him or her of a
charge of handling stolen goods;

When charges of theft and handling stolen goods are joined in
one indictment as alternative charges, and the jury is satisfied
that they can infer that the accused either stole the property or
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knowingly received it, but are unsure which was the case, they
may convict him or her of theft;3

Where the accused is charged with another larceny offence,
such as robbery, and the jury infer that he or she stole the
property in question, the theft-related element of that offence
will be met. However, before the jury can convict the accused of
that offence, they must also be satisfied that the other elements
of the offence (e.g., that the accused used force on a person in
order to commit the theft) have been proven.
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:

The facts of the case; and

The degree to which the prosecution relies on the evidence of
recent possession (R v Weetra SA CCA 7/8/1996).
Content of the Direction
40. A direction on the doctrine of recent possession should:

Explain the three requirements for drawing an inference;

Explain the inference the jury may draw if satisfied that those
requirements have been met; and

Explain the consequences of drawing the relevant inference
(see, e.g., R v Sinanovic [2000] NSWCCA 395; R v Wanganeen
(1988) 50 SASR 433; R v Bellamy [1981] 2 NSWLR 727).
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
See Crimes Act 1958 s88A. This provision only applies to trials that commenced
on or after 13 October 2004. See “Theft and Handling” in Bench Notes: Handling
Stolen Goods for further information about this issue.
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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 109).
44. Where the evidence leaves open two or more dates on which the
accused may have possessed the property, the judge must:

Identify those possible dates; and

Instruct the jury that its findings about when the accused was in
possession of the property may affect its determination of
whether the property was recently stolen (R v Khalil (1987) 44
SASR 23; Tasovac v Lawson [2009] WASCA 394).
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 Wangageen
(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:

That the property he or she possessed was different from the
property in issue, and had not been stolen; or
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
That while the property he or she possessed may be the stolen
property in issue, it had been purchased legitimately, and so
there was a reasonable explanation for its possession (see, e.g.,
Tasovac v Lawson [2009] WASCA 394).
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:

The temporal proximity between the theft and the possession;

What is known of the circumstances in which the accused
acquired the goods;

The nature and value of the goods; and

The circumstances in which the accused was found in
possession of the goods (R v Wangangeen (1988) 50 SASR 433;
R v Sinanovic [2000] NSWCCA 395).
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:

Suggest that evidence of recent possession gives rise to a
“presumption” of guilt;

State that the accused must “rebut” an inference of guilt by
providing an explanation;

Suggest that the accused must convince the jury to “accept” his
or her explanation; or

Suggest that evidence of recent possession gives rise to a rule
of law, or that recent possession is different to circumstantial
evidence (see R v Bellamy [1981] 2 NSWLR 727; R v Beljajev
[1984] VR 657; R v Stafford (1976) 13 SASR 392; R v
Wanganeen (1988) 50 SASR 433).
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
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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 Bench Notes: 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:

Failure to Answer Police Questions;

Section 41 direction.
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