Unlawful Possession Offences Explained
What the Offence Is
Unlawful possession is an offence under Section 74 of the Summary Offences Act 1953 (SA). It occurs when a person is found in possession of property that is reasonably suspected to be stolen or unlawfully obtained, and they cannot provide a satisfactory explanation of how they came to have it.
This offence is often charged when police suspect that a person has stolen goods but do not have enough evidence to prove theft. It covers situations where a person:
- Has items in their possession that they cannot lawfully account for.
- Possesses property that is suspected to have been stolen.
- Holds goods that were obtained through criminal means, even if they did not steal them directly.
Examples of unlawful possession include:
- Being found with multiple mobile phones, tools, or electronic devices without proof of ownership.
- Possessing a car or bicycle with removed or altered serial numbers.
- Holding cash suspected to be from drug transactions or other illegal activities.
Why you Need Legal Advice
Unlawful possession is a serious offence in South Australia,as it is often linked to theft and other property crimes. If you are charged with unlawful possession, it is crucial to provide evidence of lawful ownership or a reasonable explanation for how you obtained the property. Seeking legal advice can help you understand your options and potential defences.
Contact Stanley & Co Lawyers on 08 7001 6135 to speak with an expert Criminal Lawyer. We offer a complimentary 30-minute, no-obligation consultation to discuss your case and advise you on your legal options.
Helpful Questions & Answers
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What the Prosecution Needs to Prove
To secure a conviction for unlawful possession, theprosecution must prove:
- Possession – The accused must have had control or custody of the property.
- Suspicion of Unlawful Origin – There must be a reasonable suspicion that the property was stolen or unlawfully obtained.
- Failure to Provide a Satisfactory Explanation – The accused must fail to provide a reasonable or credible account of how they came into possession of the property.
Unlike theft, the prosecution does not need to prove thatthe property was actually stolen—only that there is a reasonable suspicion thatit was unlawfully obtained. The burden is on the accused to explain the lawfulorigin of the property.
The Relevant Court
Unlawful possession is a summary offence, meaning it is dealt with in the Magistrates Court of South Australia.
Cases of unlawful possession are usually heard quickly and may not require a trial if the accused pleads guilty. However, if the accused contests the charge, they have the right to present evidence in their defence.
What Defences Are Available?
A person charged with unlawful possession may raise severaldefences, including:
- Lawful Ownership or Control – If the accused can prove they owned the property or had a legal right to possess it, they may avoid conviction.
- Satisfactory Explanation – Providing a reasonable explanation for possessing the property, such as a receipt, proof of purchase, or witness testimony.
- Mistaken Identity – If the accused was wrongly identified as the person in possession of the property.
- Lack of Possession – The prosecution must prove the accused had actual control over the property. If the property was in a shared space or belonged to someone else, this may be a defence.
- Police Misconduct – If police obtained the evidence through an illegal search or violated the accused’s rights, the defence may argue that the evidence should be excluded.
What Are the Specific Maximum Penalties for the Offence?
Under Section 74 of the Summary Offences Act 1953 (SA), the maximum penalty for unlawful possession is:
- A fine of up to $2,500, or
- Six months imprisonment.
The court will consider several factors when determining the appropriate penalty, including:
- The nature and value of the property.
- Whether the accused has prior convictions.
- The strength of the explanation given.
- Whether the accused cooperated with authorities.
In some cases, if the offence is minor and the accused has no prior criminal history, the court may impose a fine or good behaviour bond instead of imprisonment.
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