Mickelberg v Barrett - [2011] WASC 101

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: MICKELBERG -v- BARRETT [2011] WASC 101

CORAM: COMMISSIONER SLEIGHT

HEARD: 28 MARCH 2011

DELIVERED : 15 APRIL 2011

FILE NO/S: SJA 1088 of 2010

BETWEEN: RAYMOND JOHN MICKELBERG
Appellant
AND
KRYSTYAN MATHEW BARRETT
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE G CICCHINI
File No  :PE 13026 of 2009

Catchwords:

Criminal law - Appeal against conviction - Stealing by conversion - Using roll of tape before paying for item - Honest claim of right - Whether implied licence to use

Legislation:

Criminal Code (WA)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr B E F Tooker

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627
Ilich v The Queen (1987) 162 CLR 110
Macleod v The Queen (2003) 214 CLR 230
Martin v Puttick [1968] 2 QB 82
R v Cushion (1997) 150 ALR 45
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

COMMISSIONER SLEIGHT: On 19 August 2010, the appellant Mr Raymond John Mickelberg, was convicted in the Magistrates Court at Perth with stealing a Henkel roll of tape (orange 30 m) worth $16.80, the property of Bunnings Group Ltd trading as Bunnings Innaloo.
The charge against Mr Mickelberg also alleged he stole a Fanworks Baja ceiling fan worth $309. Following a trial in the Magistrates Court, his Honour Magistrate Cicchini acquitted Mr Mickelberg of the stealing of the ceiling fan but found him guilty of the charge of stealing the roll of tape.
Mr Mickelberg appeals against that conviction. The initial grounds of appeal were as follows:
Ground 1
The learned Magistrate erred in law holding that the applicant was guilty of stealing the roll of tape.
Particulars
(a)The applicant admitted that he had torn three strips from an open roll of tape and placed the strips across the top of a box so as to seal the box which contained a fan.
(b)The evidence of the applicant was that he intended to pay for both the fan and the tape.
(c)The learned Magistrate held that he was not satisfied beyond reasonable double that the applicant had not intended to pay for the fan and therfor [sic] acquitted the applicant of the charge of stealing the fan.
(d)However, he held that because the applicant had admittedly used three strips of tape to seal the box, he had thereby stolen the the [sic] tape, within the meaning of Section 371(2)(e) of the Criminal Code and that 'it matters not that he intended to purchase the roll of tape'.
(e)That was an error of law. If as the learned Magistrate impliedly held, he could not be satisfied beyond reasonable doubt that the applicant did not intend to pay for the tape, at the time that he used three strips of…

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 Mickelberg v Barrett

Details

AGLC: Mickelberg v Barrett [2011] WASC 101
Case: [2011] WASC 101
Decision Date: 15 APRIL 2011

CaseChat Overview and Summary

In the matter of Mickelberg v Barrett, the appellant contested his conviction for stealing by conversion, specifically for using a roll of tape before paying for it. The case was heard in the Court of Appeal of the Supreme Court of South Australia. The appellant argued that he had an honest claim of right, believing there was an implied licence to use the roll of tape before completing the transaction. The respondent contended that the appellant's actions constituted theft by conversion.

The court was tasked with determining whether the appellant's belief in an implied licence to use the tape before payment was genuinely held and whether this belief negated the intent to permanently deprive the owner of the property. The court had to consider whether such a belief could be characterised as an honest claim of right, which would negate the requisite intent for theft.

The court found that the appellant's belief in an implied licence to use the tape before payment was not genuinely held. The court held that the appellant's actions demonstrated an intent to permanently deprive the owner of the property, as evidenced by his failure to pay for the tape and his attempt to leave the store with it. The court concluded that the appellant's belief was not a genuine claim of right, and therefore, the conviction for theft by conversion was upheld. The appeal was dismissed, and the original conviction was affirmed.

Orders