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 the nature of a rehearing.
A rehearing pursuant to s 42 of the MCA requires me to independently reconsider the evidence before the Youth Court and the findings made by the Magistrate, and form my own view as to the appropriate conclusion. I must not disregard the Magistrate’s decision, but carefully weigh and consider it and bear in mind the Magistrate’s advantage in seeing and hearing the witnesses. If, having undertaken such a consideration, I am satisfied the decision was wrong, I must substitute my view for that reached by the Magistrate or remit the matter for rehearing.[1]
[1] Taylor v Hayes (1990) 53 SASR 282.
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.
Mr Habib remained sitting on a chair (he was not on his wheelchair) at his dining table with the laptop in front of him on the table. The appellant was sitting next to him on his left. Mr Habib, who had observed that the appellant and the friend had arrived wearing black surgical masks, noted that the appellant was not wearing the black mask when they were seated at the table. The appellant asked to see the laptop again. Mr Habib said in evidence, “Then my suspect was high” and he refused the request, saying he would have to be paid first. He moved the laptop off the table and placed it on the chair to his right “so he can’t reach very easy”. Mr Habib and the appellant sat in silence for about five minutes until Mr Habib heard the friend who had been speaking with Mohsen at the front door yell something in a language he did not recognise. Mr Habib’s evidence was that as soon as this communication occurred the appellant “jumped and like this, tried to grab the laptop”. Mr Habib responded immediately by grabbing the appellant by the neck, “Because the laptop was next to me, and he was literally in front of me”.
The altercation
Mr Habib’s evidence is to the effect that he refused permission to look at the laptop without receiving payment; that he moved the laptop out of easy reach of the appellant; that there was no further discussion with the appellant about the laptop; and, upon the communication from the friend in the language he did not recognise, the appellant suddenly moved by reaching across in front of Mr Habib and grabbing the laptop. As the appellant “was literally in front” of Mr Habib (I infer the appellant had not fully stood up), Mr Habib was able to put his hands around the appellant’s neck, whereupon the appellant stood up, causing Mr Habib to fall out of his chair to the ground. Mr Habib then grabbed the appellant’s legs whilst the appellant was still holding the laptop. This caused the appellant to fall to the ground and the laptop to fall out of his hands. Mr Habib pushed the laptop away with his right hand. The appellant stood up and kicked out without connecting towards Mr Habib. The appellant then ran out of the house through the front door. Mr Habib said, “I can see when he’s running away, then he fight with Mohsen, so I could see them”. Mr Habib said appellant and the friend both ran away.
Upon noticing a gold chain (which the appellant had been wearing) was on the floor, Mr Habib called the phone number he understood was the appellant’s number and told him that he had left his gold chain at his home. In response, the appellant told him to, “put it in the mailbox”. Mr Habib then noticed Mohsen’s arm was bleeding and his clothes were torn.
Mr Habib called the Salisbury Police Station. He was told to attend at the station to make a report. Mr Habib attended the station with Mohsen and “the necklace I think, but I’m not sure with the necklace”. He was told to return home and the police arrived to analyse the scene. Upon their attendance, police seized the gold chain, the black face mask, and several crochet hooks located on the floor of the dining room.
In examination-in-chief, Mr Habib was asked whether the appellant may have been trying to reinspect the laptop at the time he reached across and grabbed it. Mr Habib said he was certain the appellant was trying to steal the laptop. He repeated that he became suspicious when the money had not been transferred into his account. He said that was why he moved the laptop to a location which was not easily accessible to the appellant and declined to allow him further access to it until the funds transfer was complete. Mr Habib further said when the friend made an utterance in “their language”, the appellant “tried and stand up very quickly and grabbed at the laptop, so I grab his neck. So, on that time, I was sure that he was going to steal the laptop”.
Mr Habib repeated in cross-examination that the appellant’s actions in reaching across and grabbing the laptop were immediately upon the friend’s utterance in “their language”. It was not put to Mr Habib in cross‑examination that in reaching across and grabbing the laptop the appellant was seeking to look at the laptop again and not attempting to steal it.
Mr Habib gave evidence the laptop was damaged following the altercation. He obtained a quote of $2,000 to fix it, which he could not afford, and he sold it for $900 several months later.
Mr Habib’s statement to police on 7 September 2021
Mr Habib’s statement provided to police on 7 September 2021 (“the statement”) was received into evidence during cross-examination of him about certain inconsistencies between his evidence in court and matters deposed to in the statement.
Mr Habib was cross-examined about matters deposed to in his statement to the effect that he heard the appellant and the friend speaking in another language to each other and he then heard Mohsen scream from out the front of the house. He told police that as Mohsen screamed the appellant reached across the dining table and grabbed the laptop. It was pointed out that Mr Habib had not described in his evidence the exchange in language of the two youths or the scream from Mohsen. Mr Habib accepted that and told the Court that the circumstances were as described in the statement which had been provided on the day of the altercation and was therefore more accurate, given it was made shortly after the altercation occurred. Mr Habib was also referred to the paragraph in his statement where he had said the friend had:
… started to inspect the laptop, however it appeared as he did not have any idea what he was looking at. The first male then asked me if I had a physical copy of the original receipt for the laptop to which I replied that I only had a digital copy. The first male asked me if I could transfer it to him, however I told him I could not send it through until I had received payment.
Mr Habib accepted that he had not given that precise evidence. He conceded that he did not have a digital receipt for the laptop because he had not been provided him with one by the person he purchased it from.
Defence counsel did not make submissions to the Magistrate regarding the inconsistencies between Mr Habib’s evidence and his out of court statement to police.
The Magistrate addressed the issue of the inconsistencies, noting Mr Habib accepted the statement was likely to be a more accurate account of what occurred than his oral evidence given the statement was provided on the day of the altercation. The Magistrate did not consider the inconsistencies undermined Mr Habib’s credibility and accepted him as an honest and credible witness.
The appellant’s submissions
The appellant, who did not give or call evidence, does not attack the Magistrate’s finding that Mr Habib was credible. He does not dispute that he attended Mr Habib’s home in response to the Gumtree advertisement. He does not dispute the evidence regarding the discussion about whether the laptop could be reset to factory settings. He does not dispute that he left and returned with the friend. Nor does he dispute that the altercation occurred or that he left following the altercation leaving his necklace behind. His complaints focus on [91] of the Magistrate’s reasons and the matters from which her Honour concluded an intention to steal. The appellant submitted those matters are capable of many different interpretations and the Magistrate chose one without excluding others.
The appellant submitted his behaviour whilst at Mr Habib’s home in removing the black mask he had worn to the home, leaving the mask, necklace, and crochet hooks behind, and giving his phone number to Mr Habib counter an inference of an intention to steal the laptop.
It was submitted the Magistrate had not excluded the possibility that the appellant wanted to look at laptop again, not steal it. It was argued the Magistrate’s finding that the appellant “seized the laptop without explanation and that he lunged over the victim to grab it” were not findings open on the evidence. In support of this complaint, the appellant referred to Mr Habib’s statement to police dated 7 September 2021 where Mr Habib states the appellant “reached across the dining room table and attempted to grab the laptop from the other side. As he did this I grabbed the [appellant] around the neck to prevent him from taking it”. The appellant contended there is no evidence of the laptop being “seized”, that “he lunged”, or that the action in grabbing the laptop “was without explanation”.
It was also contended that there was no evidence the appellant was aware his necklace had fallen from his body or that he had dropped the crochet hooks. As such, the appellant argued the Magistrate incorrectly concluded the failure to retrieve the necklace and the crochet hooks supports the conclusion that he “intended to grab the laptop and leave with it”.
Analysis
I agree there is no evidence the appellant was aware he had left the necklace, crochet hooks, or mask behind. The fact of these items being left in the wake of the appellant fleeing is circumstantial evidence which on its own does not support a conclusion of guilt. However, this item of evidence must be considered in the context of the following:
1.The showing of the screenshot of the purported transfer of the funds for purchase of the laptop to Mr Habib.
2.Mr Habib checking his phone to find the funds had not been transferred.
3.The appellant requesting to look at the laptop.
4.Mr Habib denying the request to inspect the laptop.
5.Mr Habib moving the laptop out of the appellant’s easy reach to the chair on his right.
6.Mr Habib and the appellant sitting at the table in silence until Mr Habib heard the friend’s utterance in a language Mr Habib did not understand.
7.The appellant reaching across the table “literally in front of” Mr Habib and grabbing the laptop “immediately” after Mr Habib heard the friend’s utterance in the language he did not understand.
8.Mr Habib putting his hands around the appellant’s neck when the appellant was “literally” in front of him whilst Mr Habib was still seated at the table.
9.The appellant standing fully upright still holding the laptop, Mr Habib losing grip of the appellant’s neck and falling to the ground.
10.Mr Habib grabbing the appellant’s legs after he has fallen whereupon the appellant loses his balance, falls to the ground, and the laptop falls out of his hands.
11.Mr Habib pushing the laptop out of reach of the appellant.
12.The appellant fleeing out the front door.
13.The evidence suggests Mohsen, who remained at the front door during the altercation between the appellant and Mr Habib, had an altercation with the appellant as the appellant exited. Mr Habib said, “so I can see when he’s running away, then he fight with Mohsen, so I could see them”.
14.Upon finding a necklace on the floor, Mr Habib called the number the appellant had contacted him on and told the appellant when he answered he had left a necklace at his home. The appellant told Mr Habib to put it in the mailbox.
15.“After that straight away, because I saw Mohsen was bleeding and clothes tearied (sic) up, we called the police”.
16.Police attended and seized the necklace, face mask, and crochets hooks.
Upon my review of the evidence, the description of the appellant “lunging” and “seizing” the laptop is supported by the evidence. The appellant had been sitting in silence after his request to inspect the laptop was denied and the laptop was moved out of his easy reach. Immediately upon the friend’s utterance in language Mr Habib did not understand, the appellant suddenly and unexpectedly reached or lunged across the table “literally in front of” Mr Habib and grabbed or seized the laptop.
The appellant takes issue with the Magistrate’s description of the movement in grabbing the laptop being without explanation. It is contended there is an innocent explanation, namely, that he wanted to look at the laptop again. On my assessment, innocent explanation is excluded beyond reasonable doubt. Mr Habib had refused permission to look at the laptop and had moved it out of easy reach. The appellant’s movement was sudden and, as submitted by the respondent, no doubt intended to catch Mr Habib unaware and make off with the laptop.

The appellant also takes issue with the Magistrate finding he “remained holding the laptop until they had fallen to the ground” that this was “strong evidence” that he “intended to grab the laptop and take it into his possession”. A review of the evidence condensed into my 16-point summary at [27] above makes patently clear there is no reasonable possibility the appellant intended to do anything other than take the laptop into his possession. Notably, there is no evidence that the appellant protested to Mr Habib that all he wanted to do was inspect the laptop.
The appellant complains that the Magistrate’s conclusion about him having dropped his necklace and fleeing without retrieving it, or the mask or crochet hooks, does not support a conclusion the appellant intended to grab the laptop and leave with it. The appellant did drop his necklace and it was found by Mr Habib. It was open to the Magistrate to conclude, in considering the whole of the evidence, that the appellant’s fleeing without retrieving his property was consistent with him needing to get away from Mr Habib. There is no evidence of any other reason why he had to get away from Mr Habib other than having attempted to steal the laptop.
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.