Jendrszcak v Director of Public Prosecutions
[2024] WASC 461
•4 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: JENDRSZCAK -v- DIRECTOR OF PUBLIC PROSECUTIONS [2024] WASC 461
CORAM: HOWARD J
HEARD: 3 DECEMBER 2024
DELIVERED : 4 DECEMBER 2024
PUBLISHED : 4 DECEMBER 2024
FILE NO/S: SJA 1041 of 2024
BETWEEN: VICKI LEE JENDRSZCAK
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
ON APPEAL FROM:
For File No: SJA 1041 of 2024
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE BUTCHER
File Number : BU 1127 of 2024
Catchwords:
Criminal law - Single judge appeal - Application for leave to appeal against conviction - Whether the Magistrate erred in fact - Where appellant could not identify any appellable error - Leave to appeal refused
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code 1913 (WA)
Result:
Leave to appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr B Loizou |
| Respondent | : | Ms N R Sinton |
Solicitors:
| Appellant | : | Brendan Loizou |
| Respondent | : | Director of Public Prosecutions |
Case(s) referred to in decision(s):
Humes v Townsend (1989) 4 WAR 196
Liberato v R (1985) 159 CLR 507
Samuels v State of Western Australia (2005) 30 WAR 473
HOWARD J:
The appellant's conviction and sentence
The appellant was charged with stealing craft items worth $326.50 which were the property of Spotlight Bunbury on 28 June 2023 in contravention of s 371 of the Criminal Code 1913 (WA) (Code).
Section 371 of the Code relevantly provides:
371. Term used: steal
(1) A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person any property, is said to steal that thing or that property.
(2) A person who takes anything capable of being stolen or converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say —
(a) An intent to permanently deprive the owner of the thing or property of it or any part of it;
…
Following a trial on 26 June 2024, the appellant was convicted.
The appellant was fined $500 and ordered to pay court costs of $272.70. The Magistrate granted the appellant a spent conviction.
Grounds of appeal
There are two grounds of appeal:
l.Miscarriage of justice. His Honour erred by comparing the defendant's case to a precedent that contains dissimilar facts.
His Honour cited case Humes v Townsend (1989) 4 WAR 196. In this particular case intent was established with a shop assistant giving evidence that she observed the accused place a bottle of liquor behind the front of her dress, and when a bag search was conducted it uncovered a further bottle of liquor.
The facts in the cited case differ to this case being appealed where there was no resistance to a bag search and at the time of the search there was no suggestion by the store manager that goods might be in the process of being stolen. That allegation was not made until some hours later, and after the accused had left the store.
2. Error of fact. His Honour erred by not adequately considering an alternative hypothesis of innocence.
His Honour placed great favourable weight on evidence provided by the store manager, while at the same time acknowledging the evidence she provided consisted of an admission that she did not know retail codes of conduct or retail policies, and displayed disinterest in the proceedings.
His Honour states that he rejects the evidence of the accused yet makes no attempt to explore reasons why, except to say that he expected the accused to act in a certain way by offering items to be scanned.
It can be seen in the video evidence that the accused did offer the bag, selected several items from the bag to be scanned and which were subsequently paid for and taken, with the remainder of the contents offered to the cashier to take back to the shelves.
What was said at various points during the video cannot be ascertained because the video contained no audio.
Relevant provisions for this Appeal
The appellant seeks to appeal pursuant to ss 7(1) and 8(1)(a)(i) and (b) of the Criminal Appeals Act 2004 (WA).
The appellant's conviction is a 'decision' within s 6(c) of the Criminal Appeals Act.
By s 9(1) of the Criminal Appeals Act, the appellant requires leave on each of her appeal grounds.
By s 9(2) of the Criminal Appeals Act, leave must not be granted on a ground unless this Court is satisfied that the ground has a reasonable prospect of succeeding.[1]
[1] Samuels v State of Western Australia (2005) 30 WAR 473 [56].
Outline of the Trial
The prosecution called two witnesses: a detective through whom CCTV footage from the store was adduced, and the store's manager, Ms Gough.
The prosecution case, as set out by the prosecutor in his opening address, was:[2]
1.at about 10.40 am, the appellant went into Spotlight in Bunbury on the first occasion. She had with her some partially full green shopping bags, and picked up a red Spotlight basket;
2.she selected craft items from the store and went to the checkout where she declared and paid for three items. She then left the store, returning at 11.24 am. She still had the red Spotlight basket and the green bags;
3.on this second occasion, she selected more items from the store and again went to the checkout where she declared two items. She had her purse ready to pay;
4.Ms Gough told the appellant she needed to check two full green shopping bags. These had remained with the appellant in her wheelchair; and
5.the appellant told Ms Gough that the bags were full of bags. Ms Gough looked in the bags and discovered 13 craft items which later were valued at $326.50.
[2] ts 7.
The CCTV footage from the store and an invoice of the items alleged to have been stolen were tendered as evidence.[3] It is important to note that the CCTV footage did not have an audio component. This is not a case where there was an audio part which was not played to the Magistrate.
[3] ts 9, 29.
The appellant represented herself at trial. She gave evidence and also called her carer, Alexandra Whitworth. The Magistrate did not consider Ms Whitworth's evidence to be especially probative as she was not present at the time of the material interaction between Ms Gough and the appellant.[4]
[4] ts 64.
Ms Gough gave evidence, in part, by explaining what was happening and was said at points in the CCTV footage, that:
1.she was a retail manager at Spotlight in Bunbury;[5]
[5] ts 23.
2.she had worked at Bunbury Spotlight store for 25 years and had been the manager for about 18 years.[6]
[6] ts 23, 28.
3.before serving the appellant at the checkout, she had helped the appellant pick some stock that she could not reach;[7]
[7] ts 23.
4.Ms Gough gave evidence of the following conversation while she was on the checkout;
(i)she had rung up two items;[8]
(ii)the appellant had asked to take the red (Spotlight) basket out to the car;[9]
(iii)Ms Gough said that the red basket was not allowed to leave the store;[10] and
(iv)Ms Gough said she would need to check those bags to which the appellant said, 'They're just bags' and Ms Gough responded that she would still need to check them.[11]
5.Ms Gough moved around the checkout and inspected the bag and saw items from Spotlight in the bag;
6.the appellant said to her, 'I was just going to get a price check' about those items;[12]
7.Ms Gough then price checked them and the appellant said, 'No, I don't want them';[13]
8.Ms Gough put them behind the counter;[14] and
9.the appellant left the store.
[8] ts 24.
[9] ts 24.
[10] ts 24.
[11] ts 24.
[12] ts 24.
[13] ts 25.
[14] ts 25.
Ms Gough then gave evidence that another sales assistant told her that the appellant had been in earlier and that he had served her a little while ago.[15]
[15] ts 26.
Ms Gough's evidence was that the products which had been put behind the counter were taken to the office and the police were called.[16]
[16] ts 28.
In re-examination, Ms Gough said that before she asked the appellant about the items in the bag, the appellant made no attempt to pay for or declare the items.[17]
[17] ts 37.
Magistrate's reasons
The Magistrate decided the case ex tempore.
No complaint is made by the appeal grounds that the Magistrate misdirected himself on the principles he was to apply in deciding the case.
In particular, there was no complaint made in the appeal as to the Magistrate's self-direction as to approaching the appellant's evidence in line with a Liberato direction.[18] As will be seen, the Magistrate did not accept the appellant's evidence and, correctly, appears to have put it to one side and considered whether he was satisfied of the appellant's guilt solely on the prosecution's evidence.
[18] ts 62 - 63.
The Magistrate described the uncontroversial part of the case as follows:
… It's uncontroversial in relation to this matter that the accused has attended Spotlight in Bunbury. She has purchased some items and she has left the store. She left with the basket with the permission of one of the retail customer service operatives.
She has later returned to the store. She has collected a number of items. Those items were in a basket and also in a green bag that she uses to carry around her shopping. She was unassisted during the second trip and, indeed the first to purchase those items. She's in a wheelchair. That's the most convenient way for her to collect and gather the items with the intention of taking them to the checkout and paying for them.
On the second occasion and where the controversy arises is that she has come to the store. She has gone to the checkout, placed approximately two items on the counter that have been scanned, her rewards or VIP card was scanned and then there is a dispute about what has happened next.[19] …
[19] ts 63.
The Magistrate then said:
However, a determinative part of this case is in relation to the conversation that took place between the accused and Ms Gough. It was said, according to Ms Gough's evidence, that after she rang up a few items, what was in the bags, to which the accused replied, according to her evidence, “Just bags.” Now, I accept the evidence of this Ms Gough, and insofar as it's inconsistent with the accused's evidence, I reject the accused's evidence in relation to that.
I have got no difficulty in the fact that it's perfectly normal for an accused person, or a person in a wheelchair I should say, to collect items up and gather them and pay for them at the checkout. Where it becomes an issue is if the items were secreted in such a way that I could properly infer that there was an intention to steal those items. In this case, it's not the manner in which they were secreted that causes me to make such an inference; it was the lack of declaration at the front counter.
Had one put the items in their bag and they volunteered them at the retail counter when it came time to pay or do the price check, then that would be perfectly acceptable and perfectly legal, and no offence would have been committed. However, in this instance, I infer that it was an intention to apparently (sic) deprive the items of the store, because when asked about the items she simply said they were bags. I appreciate it was only moments later that she'd asked for a price check, but it seemed like that request was more out of convenience to avoid detection, in my view.
I am satisfied in relation to the identity of the accused that, in relation to exhibit 2, the property was owned by Spotlight in Bunbury; that the accused took the property; the offence was completed, and the accused took the property when the items were secreted. And I infer that intention based on her comments at the checkout. Based on that inference, as well, I am satisfied that there was an intention to permanently deprive the store of those goods.[20] (emphasis added)
[20] ts 65 - 66.
After making those findings, his Honour referred to Humes v Townsend (1989) 4 WAR 196. His Honour said:
… one can steal an item and the offence is completed once the item is taken, and that case involved someone stealing from a retail store and secreting the item on their person. It was the point that they secreted it that the item can be deemed taken, as set out in section 371, and that's when the offence is complete. The case is analogous to this situation.[21]
[21] ts 66.
It is unclear what appealable error was contended arising out of his Honour's reference to this case. In any event, his Honour had decided the appellant's guilt and the citation appears to be a confirmation only of the process in which the Magistrate had engaged.
Appeal grounds: consideration
Although there are two appeal grounds, they were not argued separately.
The CCTV footage was also played in the course of the appeal hearing and counsel for the appellant was able to make submissions during its course.
It was not easy to understand from the appellant's written outline of submissions and her submissions at the hearing, by counsel, exactly what is said to be an appellable error.
As I understand it, the appellant submits:
1.the facts found were not properly found and led to an incorrect finding of fact;
2.the circumstances - especially from the CCTV footage - did not support that finding;
3.too much weight was placed by the Magistrate on Ms Gough's evidence;
4.the CCTV footage showed that the appellant was trying to have the items in respect of which she was convicted processed at the checkout and the transaction had not completed; and
5.the transaction was broken when Ms Gough moved around the checkout and looked at the appellant's bags, and at that time the appellant had not finished with the transaction.
I interpolate to say that the submissions put on appeal in this respect mirrored the evidence which the appellant had given before the Magistrate.
The Magistrate found that Ms Gough was a reliable witness[22] and had made appropriate concessions in cross-examination.[23]'
[22] ts 64.
[23] ts 64.
The Magistrate accepted Ms Gough's evidence.[24] That, of course, has significance when what was said (or not said) at the checkout was an important part of the prosecution's case and the Magistrate's finding.
[24] ts 65.
From what the appellant said and did at the checkout, the Magistrate drew the inference that the appellant intended to permanently deprive the store of the goods and, by that, steal them.
It was entirely unclear from the appellant's submissions why that finding was not open to the Magistrate or what error the Magistrate had made in reaching that conclusion.
The appellant put great weight on the CCTV footage and very much, in her submissions, downplayed the evidence of Ms Gough. At the hearing it was, and remains, unclear how such a 'weighting' error (if it was such) would disclose an appellable error.
Having viewed the CCTV footage, which as I have noted is without audio, there is nothing I could see (and nothing to which counsel directed me) to indicate or support the submission made that somehow the appellant was prevented from having the (stolen) items processed and that Ms Gough had prevented that occurring. The CCTV footage simply, to my viewing, did not support that submission.
Disposition
In the absence of the appellant identifying any appellable error - whether within her appeal grounds or otherwise - the application for leave to appeal must be dismissed.
I will hear the parties as to the form of the final orders and as to costs, if necessary.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JC
Associate to the Honourable Justice Howard
4 DECEMBER 2024
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