Aboriginal Legal Service (NSW/ACT)

ALS News

Innocent person not guilty as charged

23 Feb 2017


I was sitting in the back of the courtroom on a Local Court hearing day when I got a tap on the shoulder from our local Aboriginal Client and Community Support Officer. He told me there was an Aboriginal person called Chance* who needed to speak to an ALS lawyer.

I spoke to Chance who was slightly distressed. He said he had a matter listed for hearing that day but didn’t know what was happening or who was representing him. He said he thought Legal Aid was meant to be helping him, so I phoned Legal Aid. They said his matter had been transferred to a local private practitioner. I called the private practitioner who said he had no knowledge of the matter, and it certainly hadn’t been transferred to him.
It was up to me.

Under those sorts of circumstances, the magistrate would probably have given us an adjournment, but I figured it would save the time of the court, the police, the ALS, and Chance if we just proceeded that day.

I obtained a copy of the brief. It comprised a single statement from the officer in charge describing what had occurred. Basically, Chance had been stopped and searched by the officer and had been found to be carrying an assortment of jewellery. The officer charged Chance with having custody of goods that could reasonably be suspected of being stolen.

Often ALS is able to fight these kinds of charges by challenging the validity of police powers to do the stop and search.

Under the law, police aren’t allowed to arbitrarily stop and search people; police can only stop and search someone if they think a person has stolen something, is carrying something that was stolen or illegally obtained, or they think a person might use something they’re carrying to do something illegal, like break into a house.

In Chance’s case, it was clear the officer did have a valid reasonable suspicion as he had recently received a report of a person matching Chance’s description being involved in a break and enter.

Upon reading through the statement however I formed the view that the magistrate would not be able to form a reasonable suspicion that the goods were stolen. I became confident that the matter could be won.

I told the court there were no statements from anyone purporting to be the true owners of the property. There was nothing inherently suspicious about the jewellery; indeed there was no evidence of the jewellery’s value or whether it was genuine or cheap. None of the items bore any sign of ownership and Chance had told the police the items belonged to a family member. I also reminded the court that it could not make assumptions about Chance’s personal circumstances and socio-economic status.

The prosecution tried to argue that the nervous demeanour of Chance was evidence of his guilt, but I argued that innocent people are often nervous when confronted by police.

The magistrate dismissed the charge after hearing.

Chance was very happy with the outcome. He felt vindicated because he thought the charges were unreasonable to begin with. He thanked me for helping him and shook my hand.


*names have been changed to protect identities

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