COMMISSIONER OF POLICE v WILLIAM LOVETT-STEELE [2025] SASC 145

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE WICKENS) MCCRM-23-042840 Appellant: COMMISSIONER OF POLICE Counsel: MS C NOLAN - Solicitor: CROWN SOLICITOR (SA) Respondent: WILLIAM LOVETT-STEELE Counsel: MR M MEAD - Solicitor: ANDREW HILL & CO Hearing Date/s: 21/07/2025 File No/s: SCCRM-25-015796 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. COMMISSIONER OF POLICE v LOVETT-STEELE [2025] SASC 145 Judgment of the Honourable Auxiliary Justice Bochner 4 September 2025 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL ALLOWED This is an appeal of a decision in the Magistrates Court to dismiss a charge of unlawful possession, contrary to s 41(1) of the Summary Offences Act 1953 (SA) (‘the Act’). On 27 September 2023, the respondent was in possession of a ‘Giant Defy’ road bike. The police had cause to stop and speak to the respondent as he had been riding the road bike without a helmet on O.G. Road at Klemzig. Police formed a reasonable suspicion that the road bike was in the respondent’s possession unlawfully. The respondent told police that he had borrowed the road bike from a friend two days earlier. Police later determined that the road bike was reported as being stolen from Currie Street, Adelaide on 28 August 2023. The respondent was charged with having in his possession a bicycle which either at the time of such possession, or at a subsequent time before the making of the complaint in respect of such possession, was reasonably suspected of having been stolen or obtained by unlawful means, contrary to s 41(1) of the Act. At trial, the Magistrate found that the respondent had no case to answer on the charge of unlawful possession. The Commissioner of Police appeals the decision of the Magistrate, on the basis that the state of mind held by police amounted to a ‘reasonable suspicion’ within the meaning of s 41(1) of the Act. Held, allowing the appeal and remitting the matter to the Magistrates Court of South Australia for retrial: -- 1 of 10 -- 1. The Magistrate was in error to conclude that the police had actual knowledge that the bicycle was stolen, such that the offence did not fall within s 41(1) of the Act. 2. The police’s state of mind did not extend further than a reasonable suspicion that the bicycle was stolen. The police’s knowledge was based on information received from the owner of a stolen bicycle and from a search of the police database, combined with the absence of a serial number on the bicycle. 3. Citing Besanko J in Roderick v Police, ‘Belief is suspicion not knowledge’. The Magistrate was not correct to find that the police had actual knowledge that the bicycle was stolen and that the police’s suspicion had been elevated to actual knowledge that the bicycle was stolen, by virtue of interrogating the police database and speaking to the owner of a stolen bicycle. Summary Offences Act 1953 (SA) s 41(1), referred to. Roderick v Police (2004) 88 SASR 47; Lenthall v Newman [1932] SASR 126; Raynal v Samuels (1974) 9 SASR 264, applied. Homes v Thorpe [1925] SASR 286, discussed. George v Rockett (1990) 170 CLR 104; Ruddock v Taylor (2005) 222 CLR 612, considered. -- 2 of 10 -- COMMISSIONER OF POLICE v LOVETT-STEELE [2025] SASC 145 Magistrates Appeal - Criminal 1 BOCHNER AJ: On 27 September 2023, the respondent was riding a bicycle on O.G. Road at Klemzig. He was stopped by two police officers because he was not wearing a helmet. One of the police officers, Senior Constable Kassebaum, spoke to the respondent. 2 Senior Constable Kassebaum is himself a keen cyclist and, as such, he noticed the bicycle that the respondent was riding and recognised that it was an expensive model, with a number of unusual features. This led him to form the suspicion that it was stolen. 3 After looking, unsuccessfully, for a serial number on the bicycle, Senior Constable Kassebaum interrogated the police database and found that a bicycle matching the description of that ridden by the respondent had been stolen some weeks previously. He said that he could not be “100%” sure that it was the same bicycle in the absence of a serial number.1 4 Senior Constable Kassebaum then telephoned the owner of the stolen bicycle, Mr Rodda, who described his bicycle. Included in his description were a certain type of pedal and a Garmin computer mount. Neither of those items was fitted to the bicycle ridden by the respondent. Senior Constable Kassebaum’s evidence was that, at that point, he was not certain that the bicycle was the stolen one, but he was “pretty confident”.2 During the trial, the following exchange occurred between Senior Constable Kassebaum and the prosecutor:3 Q Senior Constable Kassebaum, when did you actually obtain the knowledge that the bike you saw Mr Lovett-Steele riding belong to the victim. A After the phone call. Q After the phone call and was that the reason for you to place Mr Lovett-Steele under arrest at the time. A Correct. 5 On being arrested, the respondent advised Senior Constable Kassebaum that he had borrowed the bicycle from a friend. Police officers subsequently executed a search warrant at the house of the friend but did not locate the pedals or the Garmin computer mount. On questioning, the friend denied any knowledge of the bicycle. 1 Transcript of Proceedings, Commissioner of Police v Lovett-Steele (Magistrates Court of South Australia, MCCRM-23-042840), Magistrate Wickens, 28 March 2025) 23.2 (‘T’). 2 T 23.24. 3 T 25.14-20. -- 3 of 10 -- [2025] SASC 145 Auxiliary Justice Bochner 2 6 The respondent was charged with having in his possession the bicycle which either at the time of such possession, or at a subsequent time before the making of the complaint in respect of such possession, was reasonably suspected of having been stolen or obtained by unlawful means, contrary to s 41(1) of the Summary Offences Act 1953 (SA) (‘the Act’). At trial, a statement of agreed facts was tendered, which recorded:4 1. On 27 September 2023, Mr William Lovett-Steele was in possession of a ‘Giant Defy’ road bike; 2. Police had cause to stop and speak to Mr Lovett-Steele as he had been riding the road bike without a helmet on OG Road at Klemzig; 3. Police formed a reasonable suspicion that the road bike was in Mr Lovett-Steele’s possession unlawfully; 4. Mr Lovett-Steele told police that he had borrowed the road bike from a friend named Matthew Lewis two days earlier from Mr Lewis’ residence at Gilberton; 5. Police later determine (sic) that the road bike was reported as being stolen from Currie Street, Adelaide on 28 August 2023. 7 The Magistrate found that the respondent had no case to answer on the charge of unlawful possession. In his reasons, the Magistrate set out a detailed summary of the evidence relating to the arrest of the respondent, including a description of what was captured on the body worn video camera, which was activated by Senior Constable Kassebaum when he first approached the respondent. The Magistrate accepted Senior Constable Kassebaum as a witness of truth and accepted the truth of the other evidence relied on for the purpose of the trial. He then said:5 This matter has turned on the state of knowledge or belief that Senior Constable Kassebaum had at the time of finding the defendant in possession of the bicycle. As I have mentioned earlier, only some 14 minutes expires between the initial stop and the arrest and handcuffing of the defendant. During this time, the officer has entertained an initial suspicion about the bicycle and then undertaken further investigation which results in him speaking to the actual owner of the bicycle, being able to identify when and where the bicycle was stolen and the fact that there is CCTV of the theft in existence. As well as viewing photographs of the stolen bicycle on the police system, and garnering further information from that system on the background of the theft. Due to the short period of time that elapses here, and given that it is effectively one transaction, in my opinion, the state of knowledge of Senior Constable Kassebaum at the end of the conversation with the owner of the bicycle must be that which the Senior Constable holds upon arresting the defendant. So close in time is the discovery of the information to the finding of the defendant in possession, I find that all of that information is the state of knowledge of the officer at the time of finding the defendant in possession. The authorities on the state of knowledge are quite settled. In Lenthal v Newman, as has been followed in later authorities, the suggestion that the state of knowledge of a reasonable suspicion does not include actual knowledge of theft and nor does it include something less 4 Commissioner of Police, ‘Appeal Book’, Submission in Commissioner of Police v Lovett-Steele, SCCRM-25-015796, 2 July 2025, 5. 5 Police v Lovett-Steele (Magistrates Court of South Australia, Magistrate Wickens, 28 March 2025) 3-4. -- 4 of 10 -- [2025] SASC 145 Auxiliary Justice Bochner 3 than a reasonable suspicion about the provenance of the property. That is, if there is actual knowledge of the item possessed as being a stolen item, then a species of theft should be charged as the appropriate charge in the matter because only a reasonable suspicion or belief will found a charge of unlawful possession. This is to prevent the mischief of requiring a defendant to prove their innocence with the reverse onus in circumstances where theft is the appropriate charge. … In my opinion, the availability of technology has advanced to a point where, as is demonstrated by this case, an officer at the roadside can interrogate a system, identify stolen property and contact the owner of the property to confirm the essential facts of the theft. This can be achieved effectively contemporaneously with the finding of the defendant in possession of the property. The Senior Constable was asked by the prosecutor when he actually obtained the knowledge that the bike he saw the defendant riding belonged to the victim. His answer was after the phone call. This, I take to be after the phone call to the owner of the property, Stephen Rodda. He confirms this information with the defendant and his fellow police officer when he says, ‘I have just spoken with the owner on the phone about that bike there, and it was stolen from the city back on 28 August. It is actually worth $13,000. That’s what the owner paid for it.’ The question then is, whether this is a state of knowledge that is raised to the actual knowledge of the theft and the essential ingredients of it. I found this to be the case. I found this to be the case because the Senior Constable was able to interrogate the police system and identify the bicycle from that system, call the owner of the bicycle and confirm the details of it and the circumstances of its theft and with that knowledge, positively assert that the bicycle concerned was stolen from the city on a particular date. This, combined with his own assertion in evidence that he actually obtained the knowledge that the bike was the property of the victim, after the phone call. I would have thought that the only way he could have a higher state of knowledge is if he had seen the actual theft of the bicycle as an eye witness. (Footnote omitted) 8 The Commissioner of Police has now appealed the decision of the Magistrate, on the basis that the state of mind held by Senior Constable Kassebaum amounted to a reasonable suspicion within the meaning of s 41(1) of the Act. The appellant’s submissions 9 Ms Nolan, on behalf of the appellant, submitted that the Magistrate erred in finding that the information obtained by Senior Constable Kassebaum from the police database and the telephone conversation with the owner of the stolen bicycle was sufficient to render his state of mind outside of that required for the operation of s 41(1) of the Act. Ms Nolan submitted that the threshold at which a state of reasonable suspicion becomes a state of knowledge or certainty is high. 10 Ms Nolan relied on a number of authorities which support the conclusion that knowledge for the purpose of s 41(1) would only arise from direct observation and -- 5 of 10 -- [2025] SASC 145 Auxiliary Justice Bochner 4 cannot arise on information and belief. In particular, she relied on authorities such as Lenthall v Newman,6 where the Court said:7 We agree that a distinction must be drawn between ‘suspecting that the property has been stolen’ and ‘knowing when and from whom it was stolen’, that is, knowledge in the sense of being able to testify to all the ingredients essential to the charge of a specific offence, without recourse to information and belief; but we think that anything short of knowledge, in that sense, is suspicion for the purposes of this section. 11 Ms Nolan also relied on the cases of Raynal v Samuels8 and Roderick v Police.9 12 Ms Nolan submitted that the Magistrate’s conclusion, that the level of knowledge held by Senior Constable Kassebaum took his state of mind outside the operation of s 41(1) of the Act, is inconsistent with the authorities. She asserted that Senior Constable Kassebaum’s knowledge only arose from information provided by others, and in the absence of a firm identification of the bicycle as the one stolen from Mr Rodda; as a result, it did not rise above the level of a reasonable suspicion or belief. The respondent’s position 13 Mr Mead appeared on behalf of the respondent. His primary submission was that a belief can amount to knowledge so as to preclude suspicion for the purpose of s 41(1) of the Act. In making this submission, he relied on the case of Homes v Thorpe.10 In that case, Angus Parsons J differentiated between “suspicion” and “belief” and said:11 According to the plain meaning of the words there is therefore a clear distinction between things that are "suspected" of having a certain quality or characteristic, namely, in this case, of having been stolen or unlawfully obtained, and things which are believed to have this peculiarity. The gradation in mental assent is "suspicion" which falls short of belief, "belief" which approaches to conviction, and knowledge which excludes doubt. I think, therefore, that the learned Special Magistrate was correct in finding as a fact that Dayman did not suspect the goods were of the character stated in the charge, but, on the contrary, he believed them to be stolen, indeed, the respondent's admission would almost have justified an assertion of knowledge on the subject. The observation of an eye-witness to the commission of the crime of larceny is hardly more reliable than the confession which, under the circumstances detailed in the evidence, must have left practically no room for doubt in Dayman's mind. The section was not designed to provide a summary trial without a jury where the police have the evidence making it a proper case for a charge of larceny, and its provisions should not have been invoked in these proceedings. 14 Mr Mead submitted that the Court in this case drew an analogy between the belief of the suspector on the one hand, and the knowledge of an eyewitness on the 6 [1932] SASR 126 (‘Lenthall’). 7 Ibid 132. 8 (1974) 9 SASR 264 (‘Raynal’). 9 (2004) 88 SASR 47 (‘Roderick’). 10 [1925] SASR 286 (‘Homes’). 11 Ibid 291. -- 6 of 10 -- [2025] SASC 145 Auxiliary Justice Bochner 5 other, and found that the knowledge of the suspector was similar to or as good as that of an eyewitness. Mr Mead further noted that this statement was approved by the High Court in the case of George v Rockett,12 where the Court said:13 In considering the sufficiency of a sworn complaint to show reasonable grounds for the suspicion and belief to which s. 679 refers, it is necessary to bear in mind that suspicion and belief are different states of mind (Homes v. Thorpe; Seven Seas Publishing Pty. Ltd. v. Sullivan) and the section prescribes distinct subject matters of suspicion on the one hand and belief on the other. (Footnotes omitted) 15 He further pointed to the decision of McHugh J in Ruddock v Taylor,14 where his Honour said:15 In s 189, the distinction between suspicion, belief and knowledge is fundamental. The mental state of a person who believes something to exist is different from the mental state of a person who suspects that something exists or a person who knows something exists. In Homes v Thorpe, Angas Parsons J, after examining various decisions and dictionaries, said: According to the plain meaning of the words there is therefore a clear distinction between things that are ‘suspected’ of having a certain quality or characteristic, namely, in this case, of having been stolen or unlawfully obtained, and things which are believed to have this peculiarity. The gradation in mental assent is ‘suspicion’ which falls short of belief, ‘belief’ which approaches to conviction, and knowledge which excludes doubt. (Footnotes omitted) 16 Mr Mead submitted that Homes is authority for the proposition that belief can, in certain circumstances, be incompatible with reasonable suspicion, because the belief held rises to a degree of certainty that equates with actual knowledge. 17 Mr Mead submitted that the case of Lenthall, which is authority for the proposition that actual knowledge will oust suspicion, was taken out of context in the case of Raynal, where the Court said:16 The actual ratio decidendi of Lenthall v Newman must be that in spite of such an admission being made to a police witness, which he believes, nevertheless his state of mind is to be categorised as less than knowledge which would exclude the facts from the scope of the section. (Footnote omitted) 12 (1990) 170 CLR 104. 13 Ibid 115. 14 (2005) 222 CLR 612. 15 Ibid 633 [75]. 16 Raynal (n 8) 268. -- 7 of 10 -- [2025] SASC 145 Auxiliary Justice Bochner 6 18 He argued that the Court mistakenly elevated direct observation of the crime to a requirement in order for a suspicion to amount to knowledge for the purpose of s 41(1). 19 Mr Mead submitted that in this matter, the Magistrate was correct to find that Senior Constable Kassebaum had actual knowledge that the bicycle was stolen. By the time he had consulted the police database and spoken to Mr Rodda, his suspicion had been elevated to actual knowledge that the bicycle was stolen. Consideration 20 I am of the view that the Magistrate was in error when he found that Senior Constable Kassebaum had actual knowledge that the bicycle was stolen, such that the offence did not fall within s 41(1) of the Act. As a result, the appeal must be allowed and the matter remitted to the Magistrates Court for retrial. 21 In Roderick,17 Besanko J examined the authorities dealing with s 41(1) and said:18 It is convenient to start my discussion of the relevant issues with the decision of the Full Court of this Court in Raynal v Samuels (1974) 9 SASR 264. The issue in that case was whether the police officer’s state of mind went beyond reasonable suspicion, and could be said to amount to knowledge that the goods had been stolen by the defendant. The Court examined the decision of the Full Court in Lenthall v Newman (supra). For the purposes of the issues in this case, the essence of the Court’s decision in Raynal v Samuels (supra) may be found in the following three passages (at 266-267, 272 and 273 respectively): In Lenthall v Newman [1932] SASR 126, at p.132 the Court said: ‘We agree that a distinction must be drawn between “suspecting that the property has been stolen” and “knowing when and from whom it was stolen”, that is, knowledge in the sense of being able to testify to all the ingredients essential to the charge of a specific offence, without recourse to information and belief; but we think that anything short of knowledge, in that sense, is suspicion for the purposes of this section.’ We would add that it may not necessarily involve ‘knowing when and from whom it was stolen’ in order to establish the offence of larceny of certain property; but we think that essentially knowledge for present purposes, which excludes mere suspicion, is as defined in that case namely ability ‘to testify to all ingredients essential to the charge of a specific offence, without recourse to information and belief’. ... As we said earlier, the Solicitor-General argued that this Court should overrule the decision in Lenthall v Newman in so far as that case was to be regarded as authority for the proposition that knowledge excludes the operation of the section. In our view the ratio decidendi of that case does not extend so far. It goes to the extent of laying down that a state of mind resulting from the finding of suspect property in a defendant’s possession and a confession by the defendant of their having been stolen or otherwise unlawfully obtained does not amount to knowledge which excludes the section. These facts are substantially 17 Roderick (n 9). 18 Ibid 6-8 [26]–[30]. -- 8 of 10 -- [2025] SASC 145 Auxiliary Justice Bochner 7 on all fours with those of the present case. We therefore do not need to rule on the correctness or otherwise of the dicta in Lenthall v Newman to the effect that knowledge ousts the section. Anything we said on that topic would be obiter, and in our opinion it would be only creating confusion to make obiter dicta of our own at variance with those in Lenthall v Newman, even if we thought the law as stated in the dicta in that case to be mistaken. We therefore prefer to express no view on that topic. ... Although we think that the state of mind of Constable Poole and Constable Beard had reached the stage of belief rather than mere suspicion in the non-technical sense of the word, Lenthall v Newman and Hewitt v O’Sullivan are authorities for the proposition that belief comes within the technical meaning of the word suspicion. We accept those authorities on this point, with which we respectfully agree. For reasons already given it is not necessary or desirable to go further in this case, or to decide whether, having regard to the law’s insistence upon proof of facts in a court of law before the guilt of an accused can be ‘known’, it is ever possible to assert that a person knows, extra-judicially, that an alleged offender is guilty of theft. However, upon the tests propounded in Lenthall v Newman, such a case, if it can exist at all, must be extremely rare.” In Tepper v Kelly (1988) 47 SASR 271 the Full Court of this Court again considered the scope of s 41. White J (with whom von Doussa J agreed) said (at 276): It is natural that the Court should require that a police officer have an actual suspicion and that the suspicion should be a reasonable suspicion no more, no less - at the time of the arrest or report or at the time of the laying of the complaint. The fact that some new evidence comes to light later which tends to undermine the reasonableness of the suspicion originally entertained, does not prevent the suspicion having the quality of reasonableness at the time of the making of the complaint. The Court can still form the opinion or judgment that the quality of being ‘reasonably suspected of having been stolen or obtained by any unlawful means whatsoever’ attached to the personal property in the mind of the arresting officer or complainant. If the police officer has so much information that he knows full well that the property is stolen, he does not merely suspect because he knows of his own knowledge (as explained in Raynal v Samuels (1974) 9 SASR 264 (F Ct.)) that fact - and if the police officer has too little information so that his suspicions are mere conjecture, the relevant suspicion is again not established. Neither the states of mind at opposite ends of the spectrum can amount to reasonable suspicion: see also Homes v Thorpe [1925] SASR 286; Henderson v Surfield and Carter [1927] SASR 192; Lenthall v Newman [1932] SASR 126 and Hewitt v O’Sullivan [1947] SASR 384. It is enough to found the charge and reverse the onus if personal property in the possession of the defendant is property which is reasonably suspected of having been stolen or obtained by any unlawful means whatsoever, a suspicion entertained by the particular officer on the proved facts and endorsed as reasonable by the Court - not beyond reasonable doubt but as a matter of considered judgment or opinion. It is clear enough from the authorities that if the suspector has knowledge that the personal property has been stolen or obtained by unlawful means, then he or she does not have a reasonable suspicion. I think that it is also clear that knowledge has been narrowly defined to mean first-hand knowledge, and does not include a state of mind based on information or belief. Belief is suspicion not knowledge. Furthermore, the fact that a defendant has made an admission during an interview may not be sufficient to convert a suspicion into knowledge (Raynal v Samuels (supra) at 271). The Court in Raynal v Samuels went so far as to raise a question as to whether a suspector can ever have knowledge absent findings -- 9 of 10 -- [2025] SASC 145 Auxiliary Justice Bochner 8 by a court. On the facts of this case it is unnecessary for me to consider this last point any further. It will be readily apparent that the narrower the definition of knowledge the wider the scope of the section. I turn now to apply these principles to the facts of this case. I do not think that it can be said that at any point in time before the making of the complaint Detective Hope knew that the two items were stolen or obtained by unlawful means. He had no direct knowledge of that fact, but rather was relying on information provided to him by Mr Kramer. In those circumstances, Detective Hope’s state of mind went no further than reasonable suspicion and the first submission made by the defendant must be rejected. 22 I respectfully adopt Besanko J’s discussion of Raynal and Lenthall and his encapsulation of the law in the words, “Belief is suspicion not knowledge”. I further reject Mr Mead’s submission that the decision in Lenthall was taken out of context by the Court in Raynal. 23 I note that, in Roderick, the owner of the stolen items had confirmed to the investigating police officer that the items in the possession of the defendant were his. Nonetheless, Besanko J found that this was insufficient to elevate the police officer’s state of mind from suspicion or belief to knowledge. 24 I further note that, in Raynal, not only had the owner of the stolen goods identified them as his, but the defendant had admitted the theft. Again, this was insufficient to take the state of mind of the investigating police officer beyond that required for the purpose of s 41(1) of the Act. Lenthall was another case where the accused made admissions to the investigating police officer; the Court held that knowledge for the purpose of s 41(1) of the Act was knowledge about “all the ingredients essential to the charge of a specific offence, without recourse to information and belief; but we think that anything short of knowledge, in that sense, is suspicion for the purposes of this section”.19 25 These authorities lead me to the conclusion that, while Senior Constable Kassebaum may have said that he had “knowledge” that the bicycle was stolen after his telephone conversation with Mr Rodda, he used this word in its ordinary meaning, and not in the technical sense required by s 41(1). His knowledge was based on information received from Mr Rodda and from the police database, given the absence of a serial number on the bicycle and certain equipment Mr Rodda identified as attached to his bicycle. In these circumstances, I must conclude that Senior Constable Kassebaum’s state of mind did not extend further than a reasonable suspicion that the bicycle was stolen. 26 The appeal must be allowed, and the matter remitted to the Magistrates Court for retrial. 19 Lenthall (n 6) 132. -- 10 of 10 --