Moreshead v Police - [1999] SASC 162

MORESHEAD v POLICE
[1999] SASC 162

Magistrates Appeal - Criminal

Debelle J (ex tempore)

On 23 February 1999, at Mount Gambier, the appellant was convicted by a magistrate of the offence of illegally interfering with a motor vehicle contrary to s86A of the Criminal Law Consolidation Act 1935. He was sentenced to a period of three months imprisonment. The appellant appeals against both the conviction and sentence.
Mr Henshelwood and his wife operate a shop in Mount Gambier which sells games, including computer games. The prosecution case was that, on 20 April 1998, Mr Henshelwood had parked his Nissan motor car in the front yard of his house. He left it there at about 6 p.m. He locked it. The next morning, at about 9.30 a.m., he went to his car to drive to work. He noticed that someone had interfered with his motor car. He saw that two doors had been opened. He saw also that the contents of the glove box and a tray in the dashboard was strewn over the floor and seats of the motor car. Nothing had been taken from the car.
Three pieces of paper were later removed from the front seat and were examined for fingerprints. One was a facsimile copy of a price list. It was not disputed that the price list bore a thumb print identical with the print of the appellant's left thumb. That thumb print was at the centre of the prosecution case that it was the appellant who had interfered with Mr Henshelwood's motor car. The prosecution case was that the only explanation for the fingerprint being upon the price list was that the appellant was the person who had illegally interfered with the car.
The price list was regarded by Mr Henshelwood as a confidential document. The prosecution led evidence from Mr Henshelwood concerning the practices he and his staff adopt in his shop to ensure that confidential documents are not seen or handled by customers. His evidence also concerned the location of the facsimile machine in the shop and the practices concerning other documents. The effect of his evidence was the price list would not be left in a place where it could have been handled or touched by any customer. In the course of cross-examination of Mr Henshelwood, Mr Smith, who appeared for the appellant, suggested it was possible that the price list may have been in a position where it could have been inadvertently touched by the appellant. Mr Henshelwood denied that. Mr Smith did not, however, point to any specific instance when the appellant might have touched the document.
The appellant also gave evidence. The effect of that evidence was that he was a frequent customer at Mr Henshelwood's shop. He did not give evidence that he might have touched the price list when in the shop. It is common ground that the effect of his evidence has been accurately summarised by the magistrate. The magistrate said that the appellant was not able…

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.

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Details

AGLC: Moreshead v Police [1999] SASC 162
Case: [1999] SASC 162
Decision Date: 16 April 1999

CaseChat Overview and Summary

The case of Moreshead v Police involves an appeal by the appellant, who was convicted of illegally interfering with a motor vehicle and sentenced to a three-month imprisonment term. The appellant argued that the conviction and sentence were both incorrect. The legal issues before the court were whether the prosecution had excluded any reasonable hypothesis consistent with the appellant's innocence, and whether the sentence imposed by the magistrate was manifestly excessive.

The court found that the prosecution had successfully excluded any reasonable hypothesis consistent with the appellant's innocence. The magistrate was satisfied that the appellant had not touched the price list when in the shop, and rejected the appellant's evidence that he had innocently touched the price list. The court concluded that the magistrate had correctly directed himself and was justified in finding that the prosecution had excluded any reasonable hypothesis consistent with the appellant's innocence. The appeal against the conviction was dismissed.

In relation to the sentence, the court found that the magistrate had considered the appellant's prior record, personal circumstances, and the circumstances of the offence when imposing the sentence. The court held that the sentence was within the bounds of a proper sentencing discretion for the offence, and was not manifestly excessive. The appeal against sentence was also dismissed.

The final orders of the court were that both the appeal against the conviction and sentence were dismissed.

Orders