MCGUINESS v Police - [2016] SASC 133

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MCGUINESS v POLICE
[2016] SASC 133
Judgment of The Honourable Justice Doyle
17 August 2016
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - UNLAWFUL USER OR POSSESSION OF MOTOR VEHICLE
CRIMINAL LAW - PROCEDURE - PLEAS - PLEAS IN BAR
The appellant was charged with a series of offences, in relation to the same vehicle, which included illegal use of a motor vehicle and theft of a motor vehicle. The appellant pleaded guilty to the illegal use charge and was convicted of the theft charge.
The appellant appealed against his conviction for theft, contending that the Magistrate erred in finding the charge of theft proven beyond reasonable doubt as there was no evidence to suggest that the defendant intended to permanently deprive the owner of the motor vehicle or to make a serious encroachment on the owner’s property rights. The appellant also contended that the Magistrate erred in deciding that on the facts of the case the defendant could be guilty of both the illegal use charge and the theft charge without it being duplicitous.
Held (per Doyle J), dismissing the appeal:
1. The Magistrate did not err in finding that the facts of the case established that the appellant had the requisite intention.
2. The plea of guilty in respect of the illegal use charge did not bar or otherwise render inappropriate or impermissible a conviction in respect of the theft charge.
Criminal Law Consolidation Act 1935 (SA) s 86A, s 134; Theft Act 1968 (UK) s 6(1); Crimes Act 1958 (UK) s 73(12), s 73(14), referred to.
R v Dardovska (2003) 6 VR 628; Sharp v McCormick [1986] VR 869; R v Wilson [2014] SADC 177; R v Waugh (2005) 93 SASR 274, discussed.
R v Easom [1971] 2 QB 315; R v Lloyd [1985] 1 QB 829; Pearce v The Queen (1998) 194 CLR 610; Rucioch v Police (2004) 88 SASR 326, considered.

MCGUINESS v POLICE
[2016] SASC 133
Magistrates Appeal: Criminal
DOYLE J:

The appellant was charged with a series of offences which included illegal use of a motor vehicle contrary to s 86A of the Criminal Law Consolidation Act 1935 (SA) (CLCA) (count 1) and theft of a motor vehicle contrary to s 134 of the CLCA (count 2).
The appellant pleaded guilty to count 1, and was convicted by a Magistrate of both counts.
In this appeal against his conviction for theft (count 2), the appellant relies upon two grounds of appeal:
1. The Magistrate erred in finding the charge of theft proven beyond reasonable doubt as there was no evidence to suggest that the defendant intended to permanently deprive the owner of the motor vehicle or to make a serious encroachment on the owner’s property rights in relation to the motor vehicle.
2. The Magistrate erred in deciding that on the facts of the case the defendant…

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 MCGUINESS v Police

Details

AGLC: MCGUINESS v Police [2016] SASC 133
Case: [2016] SASC 133
Decision Date: 17 August 2016

CaseChat Overview and Summary

The appellant appealed against his conviction for theft, contending that the Magistrate erred in finding the charge proven beyond reasonable doubt. The appellant also argued that it was not possible to be guilty of both the illegal use charge and the charge of theft without it being duplicitous. The appeal was heard by the Court of Criminal Appeal, which had to determine whether the Magistrate's findings were correct and whether the appellant could be guilty of both charges without the charges being duplicitous.

The court examined the evidence presented during the trial, including the agreed facts and affidavits, to determine whether the appellant had the requisite intent to commit theft. The court noted that the appellant had driven the vehicle without the owner’s consent and had no intention of returning it. The court also considered whether the charges were duplicitous, meaning that they could not coexist as separate offences. The court concluded that the charges were not duplicitous because they involved separate acts that could be distinguished from each other.

The Court of Criminal Appeal dismissed the appeal, finding that the Magistrate's decision was correct. The court found that the appellant had the requisite intent to commit theft and that the charges were not duplicitous. The court held that the appeal did not succeed and that the conviction for theft was upheld.

The Court of Criminal Appeal dismissed the appeal and upheld the conviction for theft. The court found that the appellant had the requisite intent to commit theft and that the charges were not duplicitous. The conviction for driving the vehicle without consent was also upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In this appeal against his conviction for theft (count 2), the appellant relies upon two grounds of appeal:1. The Magistrate erred in finding the charge of theft proven beyond reasonable doubt as there was no evidence to suggest that the defendant intended to permanently deprive the owner of the motor vehicle or to make a serious encroachment on the owner’s property rights in relation to the motor vehicle.2. The Magistrate erred in deciding that on the facts of the case the defendant could be guilty of both the illegal use charge and the charge of theft without it being duplicitous. Background The Information by which the appellant was charged particularised counts 1 and 2 in the following terms:1. Between the 12th and 15th day of September 2015 at ROXBY DOWNS in the said State, drove a motor vehicle without first obtaining the consent of Spotless Facility Services the owner thereof. Section 86a of the Criminal Law Consolidation Act 1935. This is a minor indictable offence.2. Between the 12th and 15th day of September 2015 at ROXBY DOWNS in the said State, committed theft by taking property namely a white 2010 Toyota Landcruiser Prado of a value involving $30,000 or less but more than $2,500, the property of Spotless Facility Services dishonestly and without the owner’s consent and intending to deprive the owner permanently of the property or to make a serious encroachment on the owner’s proprietary rights. Section 134 of the Criminal Law Consolidation Act 1935. This is a minor indictable offence. The appellant entered a plea of guilty in respect of count 1. The trial in respect of count 2 proceeded without any oral evidence. The parties provided the Magistrate with a statement of nine agreed facts, namely:1. In the early hours of Monday 14 September 2015 the defendant entered a motor vehicle Toyota Prado S145AKS which was parked in the driveway of 3 Blanche Court Roxby Downs.2. The vehicle was unlocked and had the keys in the ignition.3. The defendant then drove the vehicle out of Roxby Downs along the main road through Woomera to the Stuart Highway, where he turned south.4. The defendant had no permission to use the motor vehicle and was aware he had no such permission.5. Approximately 8 kilometres south of Pimba, the defendant lost control of the vehicle and it left the road to the east before coming to rest on its left side about 15 metres from the verge.6. The defendant flagged a passing truck driver who took him to Spuds Roadhouse at Pimba.7. Witness Derek Thompson took the defendant back to the vehicle and assisted the defendant to right the vehicle back on to its wheels.8. Police arrived at the scene at approximately 7:40 am, at which time the defendant was attempting to change the left front tyre which had blown off its rim.9. Police then took the defendant in to custody. The prosecution also relied upon a series of affidavits, which were tendered by consent and without any request by the defendant that the deponents be made available for cross-examination. The deponents of those affidavits included Mr Stretton, Mr Thompson, Mr Bland and Senior Constable Sturtevant.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It follows that ground of appeal 2 must be rejected.Conclusion For the reasons set out, the appeal is dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.