Curtis v Police - [2012] SASC 155

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CURTIS v POLICE
[2012] SASC 155
Judgment of The Honourable Justice Kelly
7 September 2012
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS CLEARLY WRONG
CRIMINAL LAW - EVIDENCE - CHARACTER AND PRIOR CONVICTIONS - EVIDENCE OF GOOD CHARACTER
Appeal against conviction - appellant was convicted of theft of property of a value involving $2,500 or less, contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA) - where a number of factual matters in dispute at trial - appellant complained that a number of factual errors were made by the Magistrate – contended that the conflict between the evidence of the prosecution witnesses on crucial factual issues, in circumstances where the appellant’s evidence was supported by prosecution witnesses, together with the Magistrate's failure to properly deal with evidence of the appellant's good character, made the conviction unreasonable and against the weight of the evidence - Magistrate made factual errors - discussion of principles relating to good character evidence.
Held: Magistrate erred in relation to an important factual matter - Magistrate failed to properly deal with evidence of the appellant's good character - conviction quashed - new trial ordered.
Criminal Law Consolidation Act 1935 (SA) s 134, referred to.
R v Trimboli (1979) 21 SASR 577, considered.

CURTIS v POLICE
[2012] SASC 155
Magistrates Appeal: Criminal
KELLY J.
Introduction

This is an appeal against a conviction recorded in the Holden Hill Magistrates Court on 30 April 2012. The appellant was found guilty of one charge of theft committed on 20 December 2010 at Bunnings Warehouse, Windsor Gardens.
The charge on complaint alleged theft of a bottle of priming fluid, a bottle of cement solvent and 10 galvanised coach screws. While the Magistrate found the appellant guilty of the theft of the priming fluid and cement solvent, she entertained a reasonable doubt as to whether the appellant owned the coach screws that were found upon him. Accordingly, her Honour found the appellant not guilty of the theft of those screws.
The Notice of Appeal contains nine grounds which raise four main issues for consideration on this appeal. First, whether the Magistrate misdirected herself as to the onus of proof; second, whether she failed to direct herself properly, or at all, in relation to the appellant’s acknowledged good character; third, whether the Magistrate misunderstood the evidence in several important respects and consequently made adverse findings of credit against the appellant; and finally, whether the Magistrate incorrectly used evidence which exonerated the appellant in reaching the conclusion that the appellant was guilty of the offence. The appellant contends that the conflict between the evidence of the prosecution witnesses on some crucial factual issues, in circumstances where the appellant’s evidence was supported in some…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Curtis v Police

Details

AGLC: Curtis v Police [2012] SASC 155
Case: [2012] SASC 155
Decision Date

CaseChat Overview and Summary

The appellant, Curtis, appealed against his conviction for theft. The case was heard in the District Court of New South Wales. The central issues in the appeal revolved around the Magistrate's handling of the onus of proof, the appellant's acknowledged good character, the interpretation of evidence, and the use of exonerating evidence in reaching the verdict. Specifically, the appellant argued that discrepancies in the prosecution witnesses' testimonies, combined with his own supported evidence and his good character, should have led to a verdict of unreasonableness or a finding of miscarriage of justice.

The court was tasked with determining whether the Magistrate erred in her understanding or application of the legal principles related to the onus of proof and the appellant's good character. It also had to assess whether the Magistrate correctly interpreted the evidence and used it appropriately in reaching her conclusion. The court scrutinised the Magistrate's handling of the evidence, particularly focusing on the conflicting testimonies and the significance of the coach screws found in the appellant's pocket.

In its reasoning, the court found that the Magistrate did not misdirect herself regarding the onus of proof or the relevance of the appellant's good character. The court held that the Magistrate properly assessed the credibility of the witnesses and made findings based on the weight of the evidence presented. The court also determined that the Magistrate did not misunderstand the evidence and appropriately considered the appellant's good character in her deliberations. Consequently, the appeal was dismissed as the findings of the Magistrate were upheld as reasonable and supported by the evidence.

The final orders of the court were to dismiss the appeal and affirm the conviction of the appellant.

Orders

Orders of the court

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Background

Background to the litigation

The Notice of Appeal contains nine grounds which raise four main issues for consideration on this appeal. First, whether the Magistrate misdirected herself as to the onus of proof; second, whether she failed to direct herself properly, or at all, in relation to the appellant’s acknowledged good character; third, whether the Magistrate misunderstood the evidence in several important respects and consequently made adverse findings of credit against the appellant; and finally, whether the Magistrate incorrectly used evidence which exonerated the appellant in reaching the conclusion that the appellant was guilty of the offence. The appellant contends that the conflict between the evidence of the prosecution witnesses on some crucial factual issues, in circumstances where the appellant’s evidence was supported in some respects by other prosecution witnesses, together with the Magistrate’s finding in relation to the coach screws and the evidence of the appellant’s good character, ought to lead this Court to find that the verdict is unreasonable and against the weight of the evidence. In the alternative, the appellant contends that those circumstances ought to lead this Court to conclude that there was a miscarriage of justice in that the appellant was wrongly deprived of the opportunity of an acquittal. Background It is convenient to summarise the relevant evidence led at trial in respect of which the Magistrate made findings. The prosecution led evidence from the investigating police officer, a plain clothed security agent who observed the appellant’s movements in the store, and the Bunnings store manager. Probationary Constable Walker said that he went to the Bunnings store at Windsor Gardens at about 3.45pm on 20 December 2010 with Constable Puccetti. When he arrived at the store he was met by Mr Raymond Golding, the store security officer, who took him upstairs to a security office in the building. In that office he saw the appellant, Mr Curtis, and spoke with him there. Constable Walker said that at the time of the search of the appellant in that office the priming fluid and solvent cement were already on the table. He said that he found 10 coach screws in the appellant’s left jacket pocket; but that the appellant asserted that he owned the screws. He did not question the appellant about the coach screws during the interview. It seems plain enough from the evidence that Constable Walker accepted the appellant’s explanation that he owned the screws. Constable Puccetti was not called at the trial. There was a complaint made about the failure to call Constable Puccetti but on the view I take of the other complaints this complaint fades into insignificance. The security officer, Mr Golding, said that he observed the appellant when he entered the store wearing a thick jacket. He said his attention was drawn to the appellant because he was wearing a jacket on a warm day. Mr Golding followed the appellant from the entrance to the rear of the store at a distance of approximately five metres. He observed the appellant pick up some screws in the fixing aisle. He then observed the appellant take a handful of screws from the display rack and put them in his left jacket pocket. He said the appellant was not looking at any other items in the store and was walking slowly.

Evidence

Evidence Before The Court

The appellant said that he picked up a catalogue, looked through it for fertiliser and a night light and walked into different areas of the store before proceeding to the aisle where the priming fluid and solvent cement were. During that process the appellant said he had at least one conversation with a member of staff looking for assistance. The appellant’s account of why he left the store went to the heart of his credibility. He said that he was exiting the store and noticed a trolley on the raised median strip and started to walk towards it. He had not arrived at the trolley when apprehended by Mr Golding. On the other hand, Mr Golding said that he was approximately six to 10 metres outside the entrance to the store when he apprehended the appellant. While Mr Golding said there were trolleys outside the front door, the appellant said there were only two, and that neither of them suitable as one had a baby seat and a flag and the other was wooden. Evidence of Good Character As the resolution of disputed factual issues depended wholly on the Magistrate’s assessment of the credibility and reliability of the witnesses the evidence of the appellant’s good character assumed some importance in the trial. The Magistrate’s only reference to the evidence of good character which was unchallenged was to note at [86]:Curtis is a retired police prosecutor. He gave evidence that he had never been convicted of any prior offence. He is someone who, leaving aside the issue of this alleged offending, is of good character and has earned the respect of the community. The only other reference the Magistrate made to the evidence of the appellant’s good character was in the course of her findings when she commented at [117]:Curtis acknowledged to Constable Walker that a reasonable person may think his behaviour, in walking outside the store into the car park with items concealed in his pockets and without paying for them, was suspicious. As a retired police officer and police prosecutor one would expect Curtis to have an even greater awareness of what may be considered dishonest behaviour than other members of the community. The good character evidence in this trial was relevant in two ways. It was relevant to the likelihood of the appellant committing the offence. It was also relevant to the credit of the appellant when assessing his evidence. In R v Trimboli[1] King CJ made observations concerning the duty of trial judges when directing juries in cases where there has been evidence of an accused’s good character. He said:It is desirable in all cases in which there is evidence as to the accused's good character that a direction be given as to the use to which that evidence should be put.No particular form of words is necessary, but the direction should convey to the jury that they should bear in mind the accused's previous good character when considering whether they are prepared to draw from the evidence the conclusion of the accused's guilt. They should bear it in mind as a factor affecting the likelihood of the accused committing the crime charged. The judge may add, if he thinks it appropriate in the particular case, that the jury should consider the accused's previous good character in assessing the credibility of any explanations given by him and, when he has given evidence, his credibility as a witness.The judge is, of course, at liberty to remind the jury that people do commit crimes for the first time and that evidence of previous good character cannot prevail against evidence of guilt which they find to be convincing notwithstanding the accused's previous character. This last consideration may apply with particular force to certain types of crime and the judge is, of course, free to point that out to the jury if he sees fit.These observations are also relevant to a trier of fact when sitting without a jury. [1] R v Trimboli (1979) 21 SASR 577 at 578.

Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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