Hosseini v Police No. Scgrg-97-1649 Judgment No. S6572

[1998] SASC 6572

HOSSEINI  V  POLICE

Magistrates Appeal

LANDER J

The appellant was found by a Magistrate sitting in the Magistrate’s Court at Adelaide to have committed, on 20 February 1997, the offence of the larceny of a double bed sheet, a single bed sheet, a peeler and an ice cream scoop, the property of Harris Scarfe Limited. 

Without proceeding to conviction, the learned Magistrate discharged the appellant under the provisions of the Criminal Law (Sentencing) Act upon her entering into a bond to be of good behaviour for a period of twelve months in the amount of $200 and to appear before a Court for sentence or conviction and sentence if she fails, during the term of the bond, to comply with the condition of the bond.  He also ordered her to pay the costs of the trial fixed at $320.

The appellant complained about the finding of guilt upon the following grounds:

“1.     The finding of guilty was contrary to the weight of the evidence.

2.The learned Special Magistrate in his approach to weighing the evidence erred:

(a) in not applying the presumption of innocence;

(b) and not giving sufficient or any weight to her good character.

3.The learned Special Magistrate should have found there was a reasonable hypothesis consistent with innocence.”

The appellant was born in Iran 38 years ago and entered Australia in September 1995. 

Immediately after her arrival she became lonely and depressed and commenced medical treatment, part of which was the prescription of Zoloft, Temazepam, Panemax and Immapramine, otherwise known as Valium.  She was under that regime of medication at the time of the alleged incident.

On 7 February 1997 about a fortnight before this incident she was referred to a psychiatrist by her general practitioner but did not comply with the referral.

In January 1997 two of her uncles died about a month apart.  As a result of the deaths of close members of the family she was obliged to go into mourning for a period of somewhere between two months and six months and during the period of mourning was unable to marry her fiance, who lives in Melbourne.

The prosecution case was that on Thursday 20 February 1997 a security officer employed by Harris Scarfe’s, Ms Cynthia Vivian, had her attention directed to the appellant by a fellow member of the staff.  The appellant was moving in or about all of the fixtures but looking nervously at members of the staff.

The appellant took a skirt from a rack and went into one of the fitting rooms and emerged without the skirt.  Whilst she was in the fitting room Ms Vivian was able to observe the appellant who did not appear to try the skirt on. 

Ms Vivian called two other on duty security officers that day and identified the appellant to them and described her observations.  The three of them followed the appellant into the basement, and into the kitchenware department.  The appellant then went behind the shelving and when she emerged items which she had taken from the kitchenware department were no longer observable.  Ms Vivian followed the appellant outside Harris Scarfe’s into Grenfell Street and stopped her as she walked along Grenfell Street.  In leaving the store the appellant had to go past a service desk in the basement for the kitchenware items, and also she had to go past a further service desk just inside the Grenfell Street entrance.

After the appellant was stopped Ms Vivian had a conversation with her.  She informed the appellant of her position in Harris Scarfe’s and indicated to the appellant that she believed that the appellant had left the store without paying for some goods.  Ms Vivian asked to be allowed to examine the appellant’s bag.  The appellant agreed and when the bag was opened there were two kitchenware items within the bag: an ice cream scoop and a peeler.  Both items still had Harris Scarfe’s price tags on them.

She was then asked to return to the store.  She complied with that request and at the store she was asked to open up the bag and place any items for which she had not paid on the floor.  She did that and took out the ice cream scoop and the peeler and also took out two pillow cases as well.  She offered to pay for those items.  She was then asked if she had any more items in her bag for which she had not paid for and she identified two more manchester items, a sheet and a valance. 

She was then asked by Ms Vivian if she had paid for these items and she said she bought them the day before.  She was asked if she had a receipt but she said she did not. 

Ms Vivian said that she informed the appellant of her rights and asked the appellant why she had left the store without first paying for the goods. According to Ms Vivian, the reply given by the appellant was - “I was going to get some money” or words to that effect.

Ms Vivian asked her what she thought she had done in the store that day and the reply was to the effect: “I don’t understand, not good English, don’t understand”.

Ms Vivian then identified more precisely the goods which it was alleged the appellant had failed to pay for as being 1 Nightmoves Queen Bedsheet, value $39.95; 1 Nightmoves Single bed valance, value $33.95; 2 Private Collection pillow cases Value $59.90; 1 swivel peeler, value $9.95; and 1 ice cream scoop, value $15.95 making a total of $159.70.  All of the items still had Harris Scarfe price tags on them.  Ms Vivian arranged for the police to arrive.

A police officer arrived shortly after and had a conversation with the appellant which he noted in long hand at the time.

She was asked:

“Q     What did you take without first paying for?

A      Just these.”

At that stage she indicated property which was on the floor in the doorway of the interview room.  The property indicated included the ice cream scoop, a peeler, one sheet set, one valance and two pillow cases.

She was asked:

“Q     How did you take them?

A      I put them in a bag.

QDid anyone give you permission to take these goods without paying for them.

ANo, no.

QWhat were you going to do with them?

AI am going to get married, I need some things for my house.

QDo you believe you had a claim of right to these goods?

AWhat is claim?

QDo you believe the store owes you something so you could take these goods.

ANo, no.”

The police officer advised her that she would be reported for stealing and took personal particulars from her and had a general conversation with her about the serving of the summons and her appearing in court.

When the conversation turned to a discussion about the court process the appellant enquired whether she would be deported.  Whilst the police officer was completing the description of her the appellant started moaning and then lay on the floor moaning.

The police officer was asked whether the appellant said anything to lead him to believe that the appellant was having difficulty with what he was saying to her and he said that it was only the question about the claim of right where he was obliged to explain himself in simpler terms.

The police officer was questioned about the appellant’s co-operation in answering questions and he agreed that she was co-operative in her answers to the questions put.  It was put to him that perhaps when she indicated the goods placed on the floor she may not have necessarily been indicating all of the items on the floor.  The police officer admitted that that was a possibility.

The appellant gave evidence.  She gave evidence of her own good character and confirmed the personal details to which I have already referred and the medication regime which had been prescribed for her.

She said that about a fortnight prior to 20 February 1997 she had been shopping in Harris Scarfe and had purchased two pillow cases which she had taken to a friend’s place and left there.

On 20 February she had picked those items up and returned to the Harris Scarfe’s store.  She had taken her medication that day and had taken a combination of Zoloft, Temazepam and Valium.

She said she was feeling dizzy and was unable to think straight as a result of the medication which she had taken.

The appellant’s evidence was that when she entered at Harris Scarfe’s she was directed, at her request, to the manchester department because she wished to obtain some queen size bed sheets to match the pillow cases which she had previously purchased and brought into the store with her. 

In error she selected a double bed sheet and a single bed sheet and put them under her arm.  She then put bed sheets in a white plastic bag which she was carrying.  She put the sheets in the white plastic bag so that she could select a skirt.  She said she tried the skirt on and did not like it and therefore put it back on the rack in the fitting room.  She said she had no memory of where she went after she left the skirt department.  She was asked whether she had any need for an ice cream scoop and she said she did not because she did not like ice cream.  She said she had no need for a vegetable peeler because she used a knife.

She said that the first time that she noticed the ice cream scoop and the vegetable peeler in her bag was when the police opened her bag.

She said that she did not have a good command of the English language and she was unable to explain to the security officer or the police officer how it was that the goods came to be in her bag.  She was also at that stage, she said, dizzy and confused.

She said that she did not think she told the security officer that she left the store because she wanted to get money.  She thought that possibly the security officer had misheard her.

As part of her case the appellant called Doctor Sabet-Peyman, who had been consulted by the appellant in relation to a depressed mood and anxiety and depression.  She confirmed that she referred her to a psychiatrist on 7 February 1997 although she did not identify the psychiatrist to whom the appellant was referred.  She gave evidence of the effects of the various drugs which the appellant claimed she was taking, although none of them had been prescribed by her.

She said that it was possible the drugs might have affected the appellant’s memory and alertness and might have caused dizzy spells and drowsiness.

The learned Magistrate put the precise factual situation to the Doctor and asked the Doctor on a number of occasions whether it was reasonably possible that the events might have occurred as the appellant suggested.  The evidence does show, after showing some reluctance to accept that proposition, that the Doctor accepted that it was reasonably possible that the appellant was dizzy, confused, sleepy and everything was blurred.

That evidence, if the appellant’s evidence was accepted, would be enough to raise a hypothesis consistent with innocence thereby requiring that the charge be dismissed.  However, the evidence to be acted upon required that the appellant’s own evidence be accepted.

The prosecution case was straightforward and that was of a woman who was observed to leave the store carrying a number of items taken from different parts of the store without first paying for those items.  The case was that when she was confronted with an allegation that she had left the store without paying for the items she gave no explanation consistent with innocence and when she was later spoken to by the store detective and even later by the police officer, still no explanation consistent with innocence.

The appellant’s case, on the other hand, was that the pillow cases had been bought on a previous occasion and were brought back into the store for the purpose of matching them with two queen size sheets.  She was dizzy and confused.  It was a matter of inadvertence that she took a double sheet and a single sheet.  She had no recollection of taking the peeler and the ice cream scoop and when she left the store she had no recollection of taking the goods without first paying for them.

The prosecution had an obligation to prove its case beyond reasonable doubt.  It was not for the appellant to prove her innocence but rather for the prosecution to prove her guilt.

The learned Magistrate did not believe the appellant.  He said that his impression was that she had a selective memory and that she relied upon the regime of drugs and an apparent inability to speak English to a greater extent than either warranted.

Whilst he was prepared to accept that she had taken the drugs, he was not prepared to accept that the drugs caused her to become dizzy, confused, sleepy or to suffer any other similar condition.  He concluded that her lying on the floor moaning was not as a consequence of the taking of the drugs but rather to give a false impression that the drugs had had a greater effect upon her than in fact they had.

He therefore rejected her defence that she was so affected by drugs that she forgot to pay for the goods and did not realise that she had taken certain goods.

The learned Magistrate was prepared to accept, however, that the pillow cases stood in a different position and he was prepared to accept her explanation that she brought the pillow cases into the store rather than took them out of the store on the day.

On that reasoning he found the charge proved in respect of all of the items, save for the pillow cases.

Whilst it is true that there was no obligation on the appellant to prove her innocence, in the absence of a satisfactory explanation the prosecution case was overwhelming.  The prosecution case was simply of a woman who was acting suspiciously (which the learned Magistrate accepted) who took a number of items from the store in circumstances where she failed to pay for them.  She did not give any explanation consistent with innocence at the time that she was apprehended.  In those circumstances, the prosecution case was overwhelming unless the appellant’s evidence raised an hypothesis consistent with innocence.

In rejecting the appellant’s evidence for the reasons which he gave the learned Magistrate did no more than excluding any hypothesis consistent with innocence and after excluding any such hypothesis, concluded that the prosecution case was made out beyond reasonable doubt.

I do not think that it can be said that the learned Magistrate erred in his approach in relation to this matter.  It cannot be said that he overlooked the presumption of innocence or where the burden of proof lay and the standard of proof required.

In my opinion this was a true jury question which, in a sense, having regard to the strength of the prosecution case needed to be resolved on a close examination of the demeanour of the appellant and the evidence which she gave.

In my opinion the learned Magistrate approached his task correctly and it cannot be said that he erred.  The appeal will be dismissed.