SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LEE v POLICE
[2015] SASC 70
Judgment of The Honourable Justice Blue
8 May 2015
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - MENS REA
CRIMINAL LAW - EVIDENCE - HEARSAY - EXCEPTIONS GENERALLY
Appeal against conviction.
The defendant was convicted by a Magistrate of seven counts of theft, five counts of illegal use or interference, two counts of entering residential premises to commit theft and three counts of entering or being unlawfully on premises.
Between 10 and 17 November 2012, a series of thefts and motor vehicle illegal use or interference offences were committed in the Aldinga Beach area. The offences comprised:
1. On 11/12 November 2012 illegal entry into a shed and theft of a shotgun at Aldinga Beach. A screwdriver and knife found outside the shed contained the defendant’s DNA.
2. On 12/13 November 2012 illegal entry into a shed, unlawful taking of a Mercedes and theft of items in the Mercedes at Seaford Rise. One week later the Mercedes was found at Port Willunga. A cigarette butt found in the Mercedes contained the defendant’s DNA.
3. On 12/13 November 2012, a Holden utility was taken from a house at Willunga. The utility was found the next morning at Aldinga Beach. A glove found inside the utility contained the defendant’s DNA as well as DNA contributed by a second person.
4. On 12/13 November 2012 two batteries, two petrol cans, a toolbox and a pram were taken from three separate locations in Aldinga Beach. One battery was found outside a neighbour’s house and the other items were found in or in the vicinity of the Holden utility.
5. Sometime before 17 November 2012 a person entered a house at Aldinga Beach, took several items and damaged a Commodore vehicle in attempting to start it. A hooded top containing a cigarette lighter found outside the back door each contained the defendant’s DNA as well as DNA contributed by one or two other persons.
The issue at trial was the identity of the offender. The prosecution tendered various witness statements and other exhibits by consent. The defendant did not give evidence.
The defendant appeals against his conviction on four grounds:
1. The Magistrate erred in finding beyond reasonable doubt that the defendant was the offender based upon his DNA being found on objects at the scene of four sets of offences.
2. It was not proved beyond reasonable doubt that the defendant intended to deprive the owner permanently of the petrol cans, car batteries or pram or make a serious encroachment on the owner’s proprietary rights.
3. The Magistrate relied on inadmissible hearsay evidence as to the ownership and lack of consent of the owners of two of the sets of items.
4. There was no evidence that the shed from which the shotgun was taken was a place of residence.
Held:
1. The shed from which the shotgun was taken was not proved to be a place…
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CaseChat Overview and Summary
The court found that the DNA evidence was indeed distinctive enough to support the defendant's conviction, particularly when considered in conjunction with other crimes that had similar DNA evidence. The court held that the DNA evidence was too coincidental to be explained by any innocent hypothesis, and therefore supported the defendant's guilt beyond reasonable doubt. Regarding the mens rea for certain theft charges, the court determined that the defendant's intent to permanently deprive the owner of the property was sufficiently established through the nature of the crimes and the defendant's actions. The court also held that the hearsay evidence was admissible as the existence of the offences was not genuinely in dispute, and the defendant had not objected to the hearsay evidence during the trial.
The court allowed the appeal in respect of count 14, which involved entering a residence to commit theft, and set aside the defendant's conviction on that count, substituting a judgment of acquittal. The court dismissed the appeal in all other respects. The court directed the parties to be heard as to any consequential orders that may be necessary.
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