MMA v Police - [2023] SASC 113

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
MMA v POLICE
[2023] SASC 113
Judgment of the Honourable Justice Bampton
2 August 2023
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - PROOF AND EVIDENCE
Appellant found guilty in the Youth Court of aggravated attempting to take property dishonestly and without the owner’s consent contrary to s 134 and s 270A of the Criminal Law Consolidation Act 1935 (SA) – whether all reasonable hypotheses consistent with innocence were excluded beyond reasonable doubt – whether the finding of guilt was open on the evidence.
Held: Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) ss 134, 270A; Magistrates Court Act 1991 (SA) s 42; Criminal Procedure Act 1921 (SA) s 158(1)(a); Joint Criminal Rules 2022 (SA) r 191, referred to.
Taylor v Hayes (1990) 53 SASR 282, considered.

MMA v POLICE
[2023] SASC 113
Magistrates Appeal: Criminal

BAMPTON J: Following a trial in the Youth Court, the appellant was found guilty of aggravated attempting to take property dishonestly and without the owner’s consent contrary to s 134 and s 270A of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). The circumstance of aggravation was that the appellant committed the offence knowing the victim was, at the time of the offence, in a position of particular vulnerability because of physical disability.
By amended grounds of appeal, the appellant makes the following four complaints:
1.The verdict of guilty was unreasonable or unable to be supported on the evidence.
2.That the prosecution did not exclude beyond reasonable doubt all reasonable hypotheses consistent with innocence.
3.The Learned Magistrate erred in finding:
(a)     That the [appellant] “lunged”;
(b)     That the [appellant] “seized the laptop”;
(c)     That the [appellant] did so “without explanation”;
(d)     That the [appellant] “remained holding the laptop until they had fallen to the ground”;
(e)     That this was “strong evidence” that the [appellant] “intended to grab the laptop and take it into his possession”;
(f)     That the [appellant] had “dropped” his necklace; and
(g)     That the [appellant] leaving the premises without retrieving the items “dropped” supported a conclusion that the [appellant] “intended to grab the laptop and leave with it”.
4.That the finding that [the appellant] “intended to permanently deprive the owner of the property” was a finding not open on the evidence and against the weight of the evidence.
This is an appeal pursuant to s 42 of the Magistrates Court Act 1991 (SA) (“the MCA”). As submitted by the respondent, by the first ground of appeal the appellant purports to import the unreasonable ground contained in the common form criminal appeal pursuant to s 158(1)(a) of the Criminal Procedure Act 1921 (SA) (“the CPA”). Section 158 of the CPA does not govern this appeal. In accordance with r 191 of the Joint Criminal Rules 2022 (SA), an appeal pursuant to s 42 of the MCA is in…

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 MMA v Police

Details

AGLC: MMA v Police [2023] SASC 113
Case: [2023] SASC 113
Decision Date: 2 August 2023

CaseChat Overview and Summary

In the matter of MMA v Police, the appellant challenged a decision of the Magistrates Court of South Australia, which found him guilty of an attempted theft. The appellant, a young man of African appearance, along with his friend, visited the respondent, Mr Habib, to inspect a laptop listed for sale. Upon inspection, the friend showed a screenshot of a bank transfer to Mr Habib, but the transfer never materialised. The appellant and his friend subsequently left the premises. The appellant was charged and subsequently convicted of attempted theft.

The legal issues before the court were whether the evidence supported the finding that the appellant intended to permanently deprive Mr Habib of the laptop, and whether there was any error in the magistrate's decision. The central issue was the interpretation of the appellant's actions and intent, particularly in relation to the purported bank transfer which never materialised.

The court found that the appellant's actions, including leaving the premises abruptly after the failed transfer attempt, were consistent with an attempted theft. The court held that the evidence clearly demonstrated the appellant's intent to permanently deprive Mr Habib of the laptop, despite the failed transfer. The appellant's argument that the magistrate erred in finding him guilty was rejected, as the evidence and circumstances strongly supported the magistrate's decision. The court dismissed the appeal, upholding the conviction.

In summary, the Supreme Court affirmed the magistrate's decision, finding that the evidence sufficiently demonstrated the appellant's intent to commit theft, and that no error was made in the original decision. The conviction for attempted theft was thus upheld.

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

Having carefully read the evidence and the reasons of the Magistrate and having had regard to the written and oral submissions, for the reasons that follow, I dismiss the appeal.The evidence Mr Habib, a double lower-limb amputee who relies on a wheelchair for mobility, gave evidence that in September 2021 he advertised a Core 19 Macbook (“the laptop”) for sale on the e-commerce application Gumtree (“Gumtree”) for $4,000. Mr Habib who had purchased the laptop one or two months earlier for $5,000 from a friend, decided to sell it as he did not require such a high‑performance device. On 7 September 2021, whilst at his friend Mohsen’s home, Mr Habib received a message through Gumtree from a person who said they were interested in purchasing the laptop. Having exchanged phone numbers with the person, Mr Habib received a phone call from the person asking to look at the laptop and offering $3,500 for it. Mr Habib provided his home address at Salisbury North for the person to attend and look at the laptop but refused the offer of $3,500. Soon after the phone call, Mr Habib returned to his home accompanied by Mohsen. Five minutes after arriving at about 1:30 pm, Mr Habib answered his door to a young male of African appearance (“the appellant”), who said he was there to look at the laptop. Mr Habib took the appellant into his dining room to show him the laptop which he took out of its box and placed on the dining room table. Whilst inspecting the laptop, the appellant asked whether it could be reset to factory settings. When Mr Habib replied that he did not know how to reset the laptop, the appellant said he would ask a friend who was good with laptops to look at it. The appellant left the house, saying he would return with his friend. Mr Habib, for whom English is a second language, gave evidence that, after the appellant left, he mentioned to Mohsen, “This guy is suspected. Can you put camera on or something to record this moment, like, his motion or something”. Mr Habib said Mohsen laughed saying “Don’t worry I am here” and Mr Habib left the laptop on the table. The appellant returned 10 minutes later with his friend, also a young male of African appearance (“the friend”). The young men entered the house and looked at the laptop. Mr Habib said the friend looked at the laptop, did not touch it, said “It’s a good laptop”, asked the sale price, and said, “I call my father to send you some money”. Mr Habib observed the friend make a phone call and overheard the person to whom the call was made say words to the effect of “I am finishing work at 6 o’clock”. Mr Habib said the appellant appeared nervous whilst Mr Habib was discussing payment details with the friend. The friend asked Mr Habib how payment should be made. Mr Habib said “Only if you want cash. If you want bank transfer anything … if you want it is critical do pay ID”. Mr Habib said the friend then showed him a “screenshot of bank transfer which is dated and confirming”. Mr Habib checked his mobile phone for the transfer, but he did not receive the money. The friend suggested the transfer may take five minutes. Mr Habib said the friend then asked for a drink of water whereupon Mr Habib offered tea or coffee. The friend said he would get water, went into the kitchen filled and drank a glass of water, and then went to stand by the front door with Mohsen.

Decision

Reasons for decision

As contended by the respondent, the fact of the appellant and the friend fleeing is consistent with them having been involved in an attempted theft. Conclusion Having carefully reviewed the evidence, the reasons of the Magistrate, and the submissions, the evidence clearly supports a finding beyond reasonable doubt that the appellant “intended to permanently deprive the owner of the property”. For the reasons I have given, none of the grounds of appeal are made out and no error has been demonstrated. I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.