CERMAK v POLICE No. SCGRG-98-1258 Judgment No. S5

[1999] SASC 5

CERMAK v POLICE

[1998] SASC 5

Magistrates Appeals

1 WICKS J                  The appellant was found guilty of common theft by the Magistrates Court, sitting at Adelaide, for stealing 31 bath oil shapes and a packet of batteries, together of the value of $28.55, the property of Target Australia Pty Ltd.  He was fined $120 without conviction being recorded and ordered to pay court fees of $80, a levy of $28, prosecution costs of $440 and a witness fee of $40.  He was given six months within which to pay these amounts.
2 The appellant was dissatisfied with the decision of the Magistrates Court and now appeals to this Court against the decision. 
3 Ms Angela Lauriston, an employee of Target Australia Pty Ltd at the store at Marion gave evidence that on 5 November 1997 at about 2.45 pm she observed the defendant in the health and beauty section of the store where he was selecting a number of bath oil shapes and placing them in a small plastic bag supplied for the purpose.  After he had completed his selection, he transferred the small bag containing the bath oil shapes to a larger bag hanging from his left wrist. 
4 He then moved on to the laundry section of the store.  He may have taken batteries from a shelf or display.  Ms Lauriston is unable to say as she kept her eyes on the bag on the appellant’s left arm.  She saw him open a blister pack containing batteries and throw the pack on to a shelf.  He then put the batteries in the rear pocket of his trousers and made his way to the car park through the laundry section and the garden section past a check-out and into the car park where he was confronted by Ms Lauriston.  She said: "I have a reason to believe you have left the store with goods not paid for - the bath oils".  He said: "What bath oils?"  Ms Lauriston said: "I also have the empty battery packet.  Would you please return to the store."  He said "Yes" and returned to the store with Ms Lauriston.  The battery pack was picked up by Ms Lauriston after the appellant had thrown it on to a shelf.
5 After the conversation in the car park, the appellant accompanied Ms Lauriston to her office where the following conversation took place.  She said, "Would you please place on the table any items you have not paid for?"  He said, "I paid for the oils."  She said, "No, you didn’t sir".  He said, "I forgot".
6 It should be made clear that when leaving the store the appellant did not attempt to pay for either the bath oils or the batteries even though there was a "cash-out" at the rear entrance to the store.
7 The appellant explained that he was preoccupied with picking up his children from school and that he was running late when he left the store.  He said that payment for the bath oils had slipped his mind.
8 The appellant’s account of events is somewhat different.  He said that he entered the Target store between 1 pm and 2.30 pm on the day in question.  He came to the store to purchase a T-Ball mitt which he needed for his son who was having his first practice that evening.  He entered the Target store through the rear entrance.  He enquired about the mitt in Target and was told that they did not stock it but that such a thing was available from the Rebel Sports Store nearby. 
9 The appellant said that on leaving home that day he discovered that the electronic device that operates his garage door was not operating because it had a flat battery.  He said that he purchased a packet of batteries from the Target store on the way to the Rebel Sports Store.  Facing the front entrance to the store he said that he paid for the batteries at the last cash register on the right.  He said that after paying for his purchase he left the store and proceeded to Rebels where he purchased the T-Ball mitt.  The batteries in their blister pack were then placed in the Rebels’ bag. 
10 On walking out of Rebels Sports Store the defendant said that he pulled the batteries out of the bag as he was not entirely certain that he had the correct ones.  He pulled them out of the small Target bag as he was walking and started opening the pack.  On walking past Wendy’s he threw the small Target bag into a rubbish bin.  He was asked what happened to the receipt and his reply was "I don’t have no idea because I never got the receipt in my hand".  The appellant re-entered the Target store, selected the bath oil shapes previously described and proceeded to the laundry section where he knelt down on the floor looking for some brackets and at that time threw away the blister pack and put the batteries in a near pocket of his trousers.  He then left the store through the rear entrance described earlier.
11 In the Magistrates Court, the appellant was charged with larceny both in respect of the bath oil shapes and the batteries.  The learned Magistrate held that the evidence indicated that the defendant had taken some time to select the bath oils and that everything had been done with a substantial degree of deliberation on his part.  In those circumstances, the learned Magistrate was unable to accept that the appellant totally forgot about the bath oils in the bag hanging from his wrist on leaving the store.  On leaving the store, he should have passed a check-out and that would have reminded him in no uncertain manner that he was required to pay for goods purchased. 
12 In her evidence in chief Ms Lauriston said that the appellant told her that he had paid for the batteries at the last cash register on the right which she identified as cash register No 9.  Ms Lauriston, accompanied by a police officer later attended at cash register No 9.  She inspected the roll for the cash register but was unable to find any reference to a payment for batteries.  The roll for cash register No 9 covered a period greater than the day in question. 
13 I am unhappy about the evidence in relation to the cash register rolls.  The evidence in chief of Ms Lauriston was clear enough but doubts began to emerge following her cross-examination on the topic. She was not familiar with the rolls and the information which they could provide.  She was not capable of accessing the rolls but called on other staff to assist her or provide the requisite information in her place.  I find the evidence as to the rolls somewhat unsatisfactory and I have decided that it should therefore be put to one side.  The evidence as to the rolls does not assist the appellant and I am inclined to think that it does not assist the respondent.
14 The learned Magistrate held that on the totality of the evidence, he was satisfied beyond reasonable doubt that the defendant removed the bath oils and the batteries from the Target store without paying for them, and without any authority from Target Australia to remove them from the store, and that he was fully aware of that fact at the time that he left the store with those items on his person, and that he fully intended to steal them.
15 I do not consider that there is any basis for disturbing the findings of the learned Magistrate in relation to the bath oil shapes.  In my view, it was open to him on the evidence to find that the appellant was guilty of larceny in relation to these items.  Prior to exiting the Target store, the appellant appears to have gone to some trouble to rearrange the items that he had purchased so that they would not be obvious when passing through the check-out.  The small bag of bath oil shapes was put into the larger bag purchased from Rebels Sports Store and the batteries were removed from their blister pack and placed in a pocket of the appellant’s trousers.  The blister pack was not removed from the store with other items but thrown onto a shelf nearby.  The appellant left the store via the back door, near which was a check-out.  In passing the check-out it would have been obvious to the appellant that if items of merchandise had been purchased, they were required to be paid for on leaving the store. 
16 Also, there is the conversation between the appellant and Ms Lauriston when she confronted him shortly after leaving the store.  The conversation went as follows:
"MS LAURISTON:     Excuse me, I am a security officer from Target.  I believe you recently left the store with goods not paid for.  The bath oils. 

APPELLANT:    What bath oils?

MS LAURISTON:      The oils in your bag, and I also have the empty battery packet.  Would you please come back to the office with me.

APPELLANT     Yes."

17 In the office a further conversation took place as follows:
"MS LAURISTON:     Would you please place on the table any items you have not paid for.

APPELLANT:    I paid for the oils.

MS LAURISTON:      No you didn’t sir.

APPELLANT:    Oh, I forgot."

18 In the conversation quoted, the appellant is caught out in that he first asserts that he paid for the bath oils but then when confronted on the point, he admits that he forgot to pay.  In the circumstances, it was clearly open to the learned Magistrate to find the appellant guilty of larceny of the bath oil shapes.
19 In relation to the batteries, the situation is not as straightforward.  Ms Lauriston did not actually see the appellant take the batteries from the display but she did see him kneeling down removing the batteries from their blister pack, placing the batteries in the pocket of his trousers and throwing the blister pack away.  In my  view, that conduct occurring as it did immediately prior to exiting the store, leads one to the inference, and a strong inference at that, that the appellant was engaged in a careful strategy to conceal the batteries before leaving the store with the intent of doing so without paying for the batteries. 
20 The learned Magistrate, when referring to the batteries, said that a peculiar aspect of the appellant’s actions was the fact that he decided to remove the batteries from their blister pack while in the store, place them in his back pocket and leave the empty pack on the display shelf in the laundry section.  He said: "That to me defies logic".  I agree.
21 In his reasons for judgment, the learned Magistrate also drew attention to the fact that Constable Hand, a police officer called in the matter, and Ms Lauriston were adamant in their evidence that the appellant never mentioned in conversation the fact that he had thrown the Target bag away in a rubbish bin on his return journey from the Rebel store to the Target store.
22 It is clear from the learned Magistrate’s reasons for judgment that he took account of the medical evidence of Dr Kennare and of the character evidence of Ms Serena Jacob.
23 In my view, there was ample evidence before the learned Magistrate to find the appellant guilty as charged.  I would dismiss this appeal.