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 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.
At the end of the aisle the appellant selected a red container from a rack. He looked to his left and right and then put the red container in his right jacket pocket with his right hand. He then selected another container from the same shelf as the red container, but this was white with a blue lid. He then looked to his left and right and put that container in his left jacket pocket with his left hand.
The appellant then walked down a couple more aisles towards the front of the store, stopping only once to look at a shed light. Mr Golding then observed the appellant leave the store via the front without approaching anyone at the registers.
Mr Golding said that he stopped the appellant when he was in the car park about six to 10 metres from the entrance to the store.
At that point, he had a conversation with the appellant, who said that he was going to “come back in to the store to pay for the items”. According to Mr Golding, the appellant refused to provide any personal details and at no stage stated that he wanted to get a trolley.
Mr Golding then asked the appellant to accompany him back inside. Once inside the manager’s office, the appellant removed the priming fluid from his pocket and, when Mr Golding asked him if he had any other items, the appellant said no. Mr Golding then asked the appellant to remove the other items and the appellant became abusive. It was Mr Golding’s evidence that when the police arrived he told them about the two items in the appellant’s left jacket pocket, namely the screws and the bottle of solvent cement. After that he said he left and stayed out of the office.
Mr Papst, the assistant manger at Bunnings, said that when the police went into the office and spoke with the appellant they asked him to produce anything other than the bottle of priming fluid which had been previously placed on the table. At that stage the appellant produced one extra bottle and 10 coach screws.
He said he later discussed the issue of the screws with the police and it was decided that Bunnings would hold the coach screws until the appellant could provide proof of purchase for those screws.
Later during the evening of 20 December Mr Papst received a call from the appellant in relation to the receipt for the screws. He agreed that on 21 December 2010 the appellant went to Bunnings and produced a receipt dated 20 December 2008 for a box of 50 coach screws the same size as those the appellant had produced the previous day. In his view, although it was unusual that the receipt was two years old, that receipt was sufficient proof that the screws had been purchased from Bunnings.
The appellant was the only witness called in the defence case. He said, contrary to Mr Golding’s evidence, that it was a cool overcast day when he went to the Bunnings store on the afternoon of 20 December 2010. He had not planned to go to Bunnings but thought he would go there to see whether the store contained any fence rails or a night light that had been advertised on television. He was also looking for fertiliser. He said he had $95.00 in cash and credit cards in his wallet at the time he went to Bunnings.
The appellant said that as he entered Bunnings he was already in possession of 10 coach screws. He had taken them along because he needed longer coach screws and wanted to compare his with those for sale at Bunnings. As none on display at Bunnings were suitable he returned the 10 screws he had brought with him back into his pocket and the display screws back on display.
The appellant’s evidence conflicted with Mr Golding’s in a number of material respects, including what he did when he first entered the store and where he went.
He said at one stage he approached a member of staff for assistance when he was looking for the night light. After he had picked up the bottles containing the solvent and primer he put them in his pockets because he wanted to free up his hands to examine night lights.
He also said that he wanted to look at security safes and actually approached a staff member in the vicinity of the safes. After looking at the safes he recorded the name and price of a safe on the rear page of the Bunnings catalogue. Throughout this time the priming fluid and solvent cement were still in his pockets.
As he wished to purchase numerous other items, he required a trolley. He intended to go outside the door where immediately on the left hand side there was a bay for shopping trolleys. He did not speak to any member of staff as he left the store because the registers were occupied.
Once he got outside he observed that the only trolleys remaining in the bay were unsuitable. He observed a trolley in the car park on the raised median strip and started walking towards that shopping trolley. He had only just stepped past the end of the display over the drain and was intending to make a telephone call when he was approached by Mr Golding. Later in his evidence the appellant said that he noticed that the trolley was next to his vehicle and that while heading towards the trolley and making the phone call he thought he would also look into his car to see if he had his shopping list with him.
Contrary to Mr Golding’s evidence about the conversation in the car park the appellant maintained that he told Mr Golding that he was intending to go back and pay for the goods, but that he needed first to get a trolley as there were other things he wanted to buy.
In summary, the appellant’s account conflicted in important respects with the prosecution witnesses and, in particular, with the account given by Mr Golding.
The Magistrate’s Reasons
The Magistrate considered the evidence in detail. She discussed some of the inconsistencies as well as some of the consistencies in aspects of the evidence given by the two prosecution witnesses Golding and Walker. Those aspects related to which items the appellant produced when asked by Mr Golding, whether Mr Golding re-entered the interview room after the police commenced their interview with the appellant and when the appellant first claimed ownership of the 10 coach screws.
Her Honour then dealt with the evidence of the appellant. She was not impressed with the appellant. At [88] she said:
Curtis sounded extremely practised and rehearsed. In part this may be indicative of his prior role as a police prosecutor and of his fastidious, pedantic and stubborn personality. However, I was very much left with the impression that Curtis was reconstructing so as to explain certain aspects of his behaviour.
Her Honour went on to reject the appellant’s account of the incident. At the heart of her rejection of the appellant was her assessment of the appellant’s credibility.
The Magistrate concluded that the appellant intended to keep the priming fluid and the cement solvent without paying for them. She was satisfied beyond reasonable doubt of the theft of those two items. As to the 10 coach screws the Magistrate said that although she had considerable scepticism regarding the appellant’s claims of ownership, she was not prepared to exclude as a reasonable possibility that he did own the coach screws that were found upon him.
Discussion
There were significant inconsistencies between the accounts given by the prosecution witnesses Golding and Walker, and that given by the appellant, in relation to the appellant’s movements within the store prior to apprehension, as well as to the sequence of events which occurred after he was apprehended by Mr Golding in the car park.
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.
It appears from her reasons that the only use which the Magistrate made of the good character evidence was to reason that because of his position and past history the appellant should have known better. I can find no indication in the judgment that, when assessing the likelihood of the appellant committing this offence and his explanation for his conduct that day, her Honour put into the scales the evidence of good character. It appears to me that the failure to have proper regard to the evidence of good character has affected her Honour’s findings as to the appellant’s credit. While I accept that the relevance of good character evidence can vary from case to case, in this case the good character evidence was unchallenged. It went to the appellant’s honesty. It was relevant both as to the likelihood of the appellant committing the offence and to the assessment of his evidence as a witness in the trial. The apparent omission by the Magistrate to properly take the evidence of good character into account, when combined with what appears to be use of the appellant’s good character to draw an adverse conclusion against him is, in my view, a material error in the circumstances of this case.
There is a further complaint that the Magistrate misunderstood some of the evidence and as a consequence drew adverse conclusions against the appellant. One of the significant matters raised under this complaint was the Magistrate’s findings on the topic of where the appellant was when he was first apprehended by Mr Golding. This was an important matter which went to the heart of the explanation given by the appellant for his movements at that time. Her Honour said at [62]:
He saw a trolley in the car park on a raised median strip and started to walk towards that trolley. He said he was approached and stopped by a person he described as a tall well built man (Golding) when he had “only stepped past” the trolley. He said that he had the mobile phone in his hand as he was intending to make a phone call. He offered no (other) explanation as to why he did not retrieve the trolley at the time.
The Magistrate went on to later make the finding that she did not accept the appellant’s evidence that he left the store to get a trolley. She said at [114]:
… I find the absence of any mention of the trolley in the police record of interview to be compelling in this respect. I accept beyond reasonable doubt that Golding stopped Curtis in the car park near the rear of where Curtis’ car was parked, as marked by him on Exhibit D2 and accept Golding’s recollection of his discussion with Curtis at that time and as noted by him following the event.

Unfortunately, that was not the evidence of the appellant about where he was in the car park at the time he was stopped by Mr Golding. The appellant in fact said he had intended to go outside the door where immediately on the left hand side there was a bay containing shopping trolleys. When he exited the store he noticed that the only remaining trolleys were unsuitable. He observed a trolley in the car park on the raised median strip, and started walking towards the shopping trolley. He had only just stepped past the end of the display over the drain and was intending to make a telephone call when he was approached by Mr Golding.
It appears that the Magistrate’s misunderstanding of the appellant’s evidence has caused her to be sceptical of the appellant’s explanation that he was walking towards a trolley to retrieve it. On her understanding of his evidence he had already stepped past that trolley when he was apprehended. That is an important matter and a finding which was material to her rejection of the appellant’s explanation for what he was doing outside at the time.
In support of this ground of appeal Mrs Shaw QC also raised a number of other complaints about the manner in which the Magistrate resolved the factual inconsistencies between the prosecution witnesses and the appellant. However, I do not find it necessary to analyse in any detail those further complaints. I consider the misunderstanding of the evidence to which I have just referred, together with the apparent failure to properly assess the relevance of the good character evidence has caused a miscarriage of justice in this matter.
In my own independent assessment of the evidence I cannot conclude that these two failures would not have made any difference to the outcome.
The Magistrate’s findings as to the credibility of the appellant were central to her determination of the factual issues. Had the Magistrate appreciated the relevance of the good character evidence and properly understood the appellant’s evidence about his movements outside the store, it is by no means certain that the appellant would have been convicted.
For these reasons the conviction must be quashed. As the issues in this matter depend almost wholly on the assessment of witnesses’ credibility the complaint must be remitted to the Magistrates Court for retrial before another Magistrate.