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…

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 Kessner v Police

Details

AGLC: Kessner v Police [2011] SASC 201
Case: [2011] SASC 201
Decision Date: 22 November 2011

CaseChat Overview and Summary

The case of Kessner v Police involved an appeal by the appellant, who had been convicted of theft. The appellant contested the conviction on the basis that the Magistrate had incorrectly determined that she lacked the intention to pay for the items she had taken. Additionally, the appellant argued that, as an unrepresented litigant, she was not fully aware of her rights, and that the Magistrate had not sufficiently considered certain evidence.

The legal issues that arose in this case centered around the correct application of the principles governing theft, particularly the necessity of proving an intent to permanently deprive the owner of property. It also involved the procedural obligations of a Magistrate when dealing with an unrepresented litigant, including ensuring the accused is aware of their rights and that all relevant evidence is appropriately considered.

The court found that the Magistrate had appropriately fulfilled their duties towards an unrepresented accused. The evidence presented to the Magistrate was sufficient to establish, beyond reasonable doubt, that the appellant had taken the items with the intent to permanently deprive the owner of them, without any intention to pay for them. The court upheld the conviction and dismissed the appeal, affirming that the evidence supported the Magistrate’s conclusion.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

WHITE J

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.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

Full text does not contain this section.