Kessner v Police - [2011] SASC 201

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KESSNER v POLICE
[2011] SASC 201
Judgment of The Honourable Justice White
22 November 2011
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - POWERS AND DUTIES IN RESPECT OF UNREPRESENTED LITIGANTS
The appellant was convicted of theft - she appealed, contending that the Magistrate had erred in finding that she did not have an intention to pay for the items which she took - the appellant submitted that as an unrepresented accused, she had not been aware of certain of her rights, and that the Magistrate did not have evidence of certain matters.
Held: appeal dismissed - the Magistrate appropriately discharged her responsibility with respect to an unrepresented accused - the evidence before the Magistrate did establish beyond reasonable doubt that the appellant took the goods, intending to keep them for herself, without paying for them.
Criminal Law Consolidation Act 1935 (SA) s 131, s 134, referred to.
Pezos v Police (20050 94 SASR 154, applied.
Taylor v Hayes (1990) 53 SASR 282; Martin v Department of Transport, Energy and Infrastructure [2010] SASC 141, discussed.

KESSNER v POLICE
[2011] SASC 201

WHITE J. The appellant was found guilty by a Magistrate of the offence of theft.[1] She appeals against that conviction.
[1] Contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
At the trial, the Magistrate heard evidence from a Loss Prevention Officer (Mr Manning) and a Check-out Manager (Ms Baikie), both of whom were employed by Coles Supermarkets.
Mr Manning’s evidence was that at the Coles store at St Agnes on 29 September 2010, he observed the appellant select a packet of toilet rolls and put them in her bag. The appellant then walked out of the store without stopping at a check-out, and without presenting the bag, or speaking, to any Coles employee. Mr Manning, accompanied by Ms Baikie, then followed her out of the store and into a newsagency approximately 20 metres away. After identifying himself, he asked the appellant to accompany him back to the store, which she did. The appellant said to Mr Manning, in their initial conversation in the newsagency, that she was waiting for a friend to bring her credit card so that she could make payment for the goods. While walking back to the store the appellant used her mobile phone to make contact with her friend. That friend arrived and handed a credit card to the appellant while she was still being spoken to by Mr Manning within the store.
A check on the contents of the appellant’s bag showed that, in addition to the toilet rolls, she had a packet of mincemeat, a tin of sliced tomatoes and two tins of soup, all the property of Coles and none of which had been paid for. The total value of these items was $15.91.
Ms Baikie’s evidence confirmed Mr Manning’s account as to the appellant’s conduct, to the extent that Ms Baikie had observed it.
The appellant was unrepresented at her trial. She did not give evidence in her own defence. The appellant’s principal submission to the Magistrate was to the effect that she had not had the necessary intention to deprive Coles permanently of the items in question, or to encroach seriously on Coles’ proprietary rights with respect to the items in her bag. Her contention was that she had intended all along to pay for them and had simply been waiting for her friend to arrive with the credit card so that she could do so.
Although the Magistrate did not say so expressly, it is evident that she regarded the evidence of both Mr Manning and Ms Baikie as both honest and reliable.
The Magistrate identified (correctly) the elements of the offence which the prosecution had to establish beyond reasonable doubt as follows:
(a)     Coles was the owner of the items in question;
(b)    the appellant dealt with those items dishonestly;
(c)     the appellant did so without Coles’ consent;
(d)the appellant intended to deprive Coles permanently of the property or to encroach seriously on its proprietary rights with respect to that property.
The first and third of those elements were not in dispute. As to the second (that the appellant had dealt with the items dishonestly) the Magistrate referred to s 131 of the CLCA. Insofar as is relevant for present purposes, s 131 provides:
(1)A person's conduct is dishonest if the person acts dishonestly according to the standards of ordinary people and knows that he or she is so acting.
(2)The question whether a defendant's conduct was dishonest according to the standards of ordinary people is a question of fact to be decided according to the jury's own knowledge and experience and not on the basis of evidence of those standards.
(3)A defendant's willingness to pay for property involved in an alleged offence of dishonesty does not necessarily preclude a finding of dishonesty.
…
(5)The conduct of a person who acts in a particular way is not dishonest if the person honestly but mistakenly believes that he or she has a legal or equitable right to act in that way.
…
The Magistrate concluded that the appellant had dealt with the grocery items dishonestly, saying:
[19]The defendant knew that it was necessary for her to pay for the goods before leaving the store but she did not do so and in doing so she was acting dishonestly.
[20]The fact that subsequent to being detained, the defendant indicated a willingness to pay for the items, does not negate the fact that by leaving the store earlier without paying for the items, the defendant did so dishonestly. In this regard I note s 131(3) of the Act.
The Magistrate was satisfied that the prosecution had established the fourth element beyond reasonable doubt, that is, that the appellant did intend to deprive Coles permanently of the items or to make a serious encroachment on Coles proprietary rights (s 134(1)(c) and (2)). The Magistrate said:
[24]The defendant did not stay inside Coles and call her friend before leaving the store without payment for the items. The defendant did not stop at a cash register before leaving the store and explain she intended to purchase some items but was waiting for her friend to arrive to enable her to make payment. The defendant did not wait immediately adjacent to the exit for her friend to arrive to enable her to pay for the goods. Instead the defendant walked out of the store without paying for the items, without stopping and without calling her friend. She entered another store some distance away. This is not behaviour indicative of someone intending to pay for items taken from the store. Further, one of the items was perishable meat which would obviously spoil if kept from the store for any period of time.
[25]I find the defendant’s conduct as described by the prosecution witnesses is such that it does establish beyond reasonable doubt that the defendant intended to keep the items for herself and that, until detained, she had formed the necessary intention to keep the items without paying for them.
The appellant represented herself on the appeal. Her submission was to the effect that the Magistrate should have been satisfied that she had intended to pay for the items in question, or, at least, that the prosecution had not proven beyond reasonable doubt that she did not have that intention.
During the course of her submissions, the appellant emphasised that she had been unrepresented at the trial and, accordingly, disadvantaged in the conduct of her defence. In addition, the appellant mentioned that she was on a Griffiths remand at the time of the offence. The submission was that she would not have put the purpose of that remand in jeopardy by stealing goods of such modest value. The appellant said that she was unaware that the Magistrate did not know that she was on Griffiths remand at the time, the implication being that, had she been so aware, she would have led evidence to that effect.
Next, the appellant submitted that at the time of the offence she lived over the road from the Coles Supermarket. The suggestion was that this explained why she was meeting her friend at the supermarket, and was a further reason why she was unlikely to have committed any offence there, as she was a regular customer.
Finally, the appellant submitted that she had been unable to call her friend to give evidence at the trial because the friend was in custody. The appellant said that she was unaware that she could have secured the attendance of the friend by the issue of a subpoena.
The obligations of trial judges and magistrates when an accused is unrepresented are well known. In Pezos v Police,[2] Debelle J summarised the Court’s responsibilities in such cases as including, but not limited to:
[2] [2005] SASC 500; (2005) 94 SASR 154.
·Keeping the unrepresented parties apprised of their rights and duties;
·Being vigilant to keep the proceedings free of error or misunderstandings;
·Alerting the litigant to the implications or consequences of the manner of conduct of a defence;
·Explaining to an accused person the choices open during a trial (without advising on the exercise of those rights and without unduly interfering in the prosecution case);
·Explaining the form in which questions may be put;
·Advising of the right to seek a voir dire hearing.
Debelle J also emphasised the importance of a full transcript of the proceedings being kept so that there is a record of the guidance which the trial court gave to the unrepresented litigant:
It cannot be stressed too much that, where one of the parties is unrepresented, it is essential that the transcript record remarks made by the judicial officer presiding over the trial, for the purpose of providing guidance or instruction to the unrepresented litigant. As is evident from this appeal and from recent appeals in this Court, issues will arise as to the extent to which a judicial officer has informed an unrepresented litigant of that litigant's rights and as to the extent to which the judicial officer has informed the litigant of relevant procedural issues or as to any substantive issue. For that reason, it is essential that the transcript record, not only the evidence, but also those kinds of remarks.[3]
[3] Ibid at [40]; 163-4.
On the hearing of the appeal, I received an affidavit from Snr Constable Ross, the prosecutor at the trial. He deposed that the matter had originally been listed for trial on 11 May 2011. However, at the request of the appellant, the Magistrate adjourned the trial to 7 June 2011. The appellant sought the adjournment in order to obtain new legal representation (the firm which had been acting for her no longer doing so) and to enable her to call a witness at the trial (the friend referred to above).
Snr Constable Ross deposed that the appellant was still unrepresented on 7 June 2011. It seems that she did not on that occasion make any further application for an adjournment.
Senior Constable Ross deposed that the transcript of the evidence adduced at trial provided by the Magistrates Court to this Court for the purposes of the appeal is not complete. That is because it does not contain any record of the interchanges between the Magistrate and the appellant in which the Magistrate explained to the appellant her rights to cross-examine and, at the conclusion of the Crown case, her finding that the prosecution had established a case to answer. The Magistrate explained to the appellant that she could give evidence in her defence but was under no obligation to do so. Senior Constable Ross deposed that the appellant then informed the Magistrate that she did not wish to give evidence. Again, she did not seek any opportunity to call her friend.
The transcript of the proceedings in the Magistrates Court originally provided in connection with the appeal contains a transcript of the evidence only. It does not include the prosecution opening, nor any of the discussion between the Magistrate and the appellant to which Snr Constable Ross deposed.
In that circumstance, and bearing in mind the appellant’s submission about her lack of awareness, I requested that this Court be provided with a transcript of the entire proceedings before the Magistrate on 7 June 2011. Since the hearing, some further transcript has been provided but this included only the prosecution opening, and the discussion which occurred after the Magistrate returned her verdict of guilty. The new transcript does not include a record of the assistance which the Magistrate had given to the appellant.
Despite that, I consider it appropriate to proceed on the basis of Snr Constable Ross’ affidavit. There is no reason to doubt its reliability. The new transcript provided by the Magistrates Court is plainly not a complete record of the proceedings, and that may well explain the absence in the transcript of any record of the remarks to which Snr Constable Ross deposed.
I am not willing to conclude that the Magistrate failed to discharge her responsibility with respect to an unrepresented accused. Further, it is reasonably plain that the appellant has at least some familiarity with the operation of the courts and the manner of conduct at trials. She was aware that her friend may be able to give evidence in the trial, had obtained an adjournment of the trial for the purpose (in part) of securing the attendance of the friend, and could have easily explained to the Magistrate her difficulty in arranging the friend’s attendance.
In any event, it is not apparent that the absence of the friend has caused significant prejudice. The prosecution witnesses agreed that the appellant had told them, when they first spoke to her, about her friend, that she had telephoned her friend, and that the friend arrived shortly afterwards with a credit card. Account must also be taken in this respect of the fact that the appellant chose not to give evidence herself on the matters about which she now says she wished to lead evidence from the friend.
The appellant could have told the Magistrate that she was on a Griffiths remand, but did not. In my opinion, little significance is to be attached to this. It is common in this kind of offending to wonder why people commit such acts of dishonesty when the amounts taken are so minor. That is so whether or not the accused was on a Griffiths remand at the time.
Based on the appellant’s manner of conduct of the appeal and the transcript of evidence at the trial, she appears to be capable and articulate. I consider that she could, if she wished, have informed the Magistrate that she was subject to a Griffiths remand. It may well be that the appellant chose not to, in order to avoid the possibility that the Magistrate’s judgment may be coloured by knowledge of her prior history.
In summary, I am not prepared to conclude that the Magistrate failed to discharge her responsibilities in relation to the appellant as an unrepresented litigant.
The present appeal is an appeal by way of rehearing. The task of this Court on the appeal is to reach its own view of the case by making an independent review of the evidence before the Magistrate. An appeal may be allowed even if there is evidence to support a magistrate’s findings. This Court must give due weight to the advantage held by magistrates in seeing and hearing the witnesses. However, the fact that a magistrate reaches his or her conclusion by an acceptance of the evidence of particular witnesses does not prevent this Court from carrying out its statutory function. There may be cases in which incontrovertible facts or uncontested testimony, or the glaring improbability of a magistrate’s conclusion will, despite the magistrate’s preference for the evidence of a particular witness, warrant this Court’s interference. If, after giving due regard to the advantage held by magistrates in seeing and hearing witnesses, this Court reaches a different view on the evidence, it must give effect to that view by substituting its own view for that of the Magistrate, or, in an appropriate case, by remitting the matter for rehearing before the same or a different Magistrate.[4]
[4] Taylor v Hayes (1990) 53 SASR 282 at 291-2; Martin v Department of Transport, Energy and Infrastructure [2010] SASC 141 at [37]-[38].
I have reviewed the whole of the evidence with these principles in mind. As noted earlier, the Magistrate accepted the evidence of Mr Manning and Ms Baikie as honest and reliable. There is no reason for this Court not to regard their evidence in the same way.
The appellant’s intention when taking the items from the store is to be inferred from her conduct as described in the evidence of the prosecution witnesses. That conduct includes her statement, when first spoken to by Mr Manning, that she did intend to pay for the items and was waiting for her credit card to be provided to her by a friend.
In my opinion, the matters to which the Magistrate referred are important. They are inconsistent with the conduct one would expect of a person who has selected the desired goods but is awaiting the means of paying for them. The appellant did not stay within the Coles store at all; she did not make a telephone call to her friend within the store; she did not ask for the goods to be put to one side until she had the means of making the payment; she did not explain her intentions to any Coles employee; she did not wait immediately adjacent to the exit for her friend to arrive; and instead moved to another shop some distance from the Coles store with the apparent intention of making some separate purchase there; she removed the goods from the control of Coles and, had it not been for Mr Manning’s intervention, those goods would have remained beyond its control. This last matter is significant because Coles was deprived of the opportunity of ensuring that the quality of the mincemeat was maintained, should the appellant have changed her mind about its purchase.
In these circumstances I agree with the Magistrate’s conclusion that the prosecution evidence did establish beyond reasonable doubt that the appellant took the goods, intending to keep them for herself, and without paying for them.
Conclusion
For the reasons given above, I dismiss the appeal.