Paul Wunsch v SA Police No. SCGRG 94/2125 Judgment No. 4986 Number of Pages 12 Criminal Law and Procedure

[1994] SASC 4986

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS
Criminal law and procedure - particular offences - offences against property - larceny or stealing - Appeal against conviction for larceny appellant charged under s131Criminal Law Consolidation Act 1935 but of fence designated as minor indictable, indicating reliance of s134 CLCA - asserted that an abuse of process to charge appellant as a recidivist because value of good small and prior conviction occurred sixteen years previously - larceny a common law of fence - provisions of CLCA merely accept the existence of the common law offence - prosecution should have pleaded common law offence and then adopted one or other of the procedures in Rule 11 Schedule 3 CLCA - erroneous for prosecution to simply refer to s131 in the information - appellant not misled - no prejudice to appellant - no doubt as to intention and aim of the prosecution - "staleness" of earlier offence did not amount to abuse of process - exercise of prosecutional prerogative not subject to review by the court - sentencing discretion allows decision of how much weight to accord earlier conviction - magistrate not in error. Criminal Law Consolidation Act, 1935ss131, 134, Schedule 3 and Summary Procedure Act, 1921s5. Rona v The District Court of South Australia (Full Court, 19 January 1995, unreported, available on SCALE); Jago v The District Court of New South Wales and Ors
(1987) 168 CLR 23 and Devries and Anor v Australian National Railways Commission and Anor (1993) 112 ALR 641, applied. Police v Begg (Nyland J, 11 July 1994, unreported), discussed.

HRNG ADELAIDE, 17, 25 January 1995 #DATE 28:2:1994 #ADD 14:3:1995

Counsel for appellant:     Mr G J S Mancini

Solicitors for appellant:    Mr G J S Mancini

Counsel for respondent:     Mr M G Hinton

Solicitors for respondent: DPP (SA)

ORDER
Appeal dismissed.

JUDGE1 OLSSON J This is an appeal against the conviction of the appellant, by a stipendiary magistrate, of an offence of larceny.

2. The appellant was charged with the offence, ostensibly under section 131 of the Criminal Law Consolidation Act, 1935 ("the CLCA"), as a minor indictable offence. Particulars of the charge were that, on 9 October, 1993 at Newton, the appellant stole smallgoods, together of the value of $11.20, the property of Foodland Stores. He pleaded not guilty and the trial went forward on oral evidence. After hearing submissions the learned magistrate found the charge proved, recorded a conviction against the appellant and imposed a fine of $250 plus court and witness fees and the usual statutory levy.

3. The present appeal was originally sought to be prosecuted on the somewhat unusual basis that it was asserted that it had been an abuse of process for the prosecution to charge the appellant, as a recidivist, on information with an offence designated or classified as a minor indictable offence, in view of the facts that:-
    . the value of the goods was small.
    . the prior conviction relied on occurred some sixteen years
     earlier and constituted the only previous conviction.
    . to do so prejudiced, or potentially prejudiced, the appellant in
     the fair presentation of his case.
. "The provisions of Section 134 are not to be invoked
     oppressively or automatically, nor was it mandatory for the
     prosecutor to proceed".

4. Additional grounds of appeal, as to the evidentiary merits, which were filed subsequently, were also relied upon.

5. The prosecution evidence, as led, was of simple compass. The witness Follett, a security officer at the Foodland Store on Gorge Road, Newton, deposed that she observed the appellant leaving the seafood section in the store holding a white wrapped parcel, which, as he walked along a rear aisle towards the delicatessen section, he slipped under his jacket on the right side.

6. She followed and stood close to him at the delicatessen section, where he waited his turn and then requested a quantity of Hungarian salami, to be sliced. This process occupied some minutes, after which the salami was wrapped, marked with the price $6.32 and handed to the appellant.

7. The appellant was then seen to walk away, also slip the salami under his jacket on the right side and walk out through the fruit and vegetable section past the check out into the entrance of the supermarket area. He did not pay for the seafood or the salami.

8. Follett noted that the appellant thereafter walked to the office, purchased some cigarettes and then walked out through the automatic doors on to the footpath. He did not remove the parcels from under his arm, nor had he paid for them.

9. Follett, together with the store manager, approached the appellant on the footpath. She told him that he had items under his jacket for which he had not paid and asked that he return into the store. He did so, after some dialogue with a woman who was exiting the store and to whom he handed some keys.

10. The appellant produced the seafood, for which he claimed to have paid. He said that he had thrown the docket away. He did not have the salami on his person and said that he must have dropped it.

11. Shortly afterwards the checkout supervisor entered, carrying the packet of salami. Ms Inge, a checkout operator testified to the learned magistrate that she found the parcel of salami on the floor near the doors.

12. The appellant gave evidence on oath. He contended that he had paid for the seafood before leaving the supermarket area. He went out between Target and Foodland looking for his female companion. He did not find her. With the seafood tucked under his left armpit he went back into Foodland looking for her. He decided, whilst there, to purchase some salami, but became annoyed because of the inordinate time taken by the assistant to slice it. Having eventually received the parcel of salami, he also tucked it under his left armpit. The checkouts were all busy, so he just threw the salami parcel towards a basket shelf near the last checkout and it landed on the floor. He was angry. He then left the area, still carrying the seafood, purchased some cigarettes and exited the store. He contended that he did not drop the salami packet near the doors, but in a quite different location in the aisle behind the checkout area. He denied the accuracy of certain aspects of the evidence given by Follett.

13. The appellant was subjected to a thorough and vigorous cross examination as to certain apparent inconsistencies in his story and the learned magistrate had an ample opportunity of assessing his demeanour. In the course of his reasons for decision the learned magistrate indicated that he found the appellant an unsatisfactory witness and not a person of truth. In substance, he accepted the version of the narrative facts related by Follett as being what, in truth, had transpired.

14. It is convenient, first, to address those arguments based upon the contention that the learned magistrate ought to have stayed the prosecution.

15. The document which initiated the prosecution against the appellant, so far as is material, read as follows:-
    It will be noted that there was no express averment in it of facts
invoking the provisions of section 134 of the CLCA, which
    stipulates that the maximum penalty for simple larceny following
    a previous conviction for felony shall be imprisonment of ten
    years. The section does not impose any restriction on the time
    within which the previous conviction must have occurred.

16. The statutory penalty for the primary offence of simple larceny is prescribed by section 131 of the CLCA. Dependent upon the value of the goods said to have been stolen, such an offence may have to be dealt with as either a summary offence or an indictable offence. If the value of the goods is less than $2,000 the alleged offence is, prima facie, to be dealt with as a summary offence and is therefore prosecutable on complaint.

17. However, if section 134 is relied upon, then the potential maximum penalty is imprisonment for ten years. By virtue of section 5(3) of the Summary Procedure Act, 1921, a section 134 situation of the type here alleged must be treated and prosecuted as a minor indictable offence.

18. It follows that, in the instant case, the only initial indication of reliance on section 134 of the CLCA was that the prosecution was initiated as a minor indictable offence. This is so despite the provisions of rule 11 of Schedule 3 of the CLCA which provides that:-
    "Any charge of a previous conviction may be made either by a
    separate information or at the end of the information by means of
    a statement that the person accused has been previously convicted
    of that offence at a certain time and place without stating
    particulars of that offence."

19. There is no dispute but that the basis of resort to section 134 was a prior conviction for larceny some 16 years earlier.

20. The legal effect of and possible interaction between sections 131 and 134 has not been the subject of a great deal of judicial consideration. It is suggested by the learned author of Lunn "Criminal Law, South Australia", that Police v Begg (Nyland J, 11 July 1994, unreported) stands as authority for the proposition that section 134 does not create a separate offence apart from that adverted to in section 131, but only bears upon the ultimate question of penalty.

21. With respect, I am by no means certain that it does stand as such an authority. It is true that Nyland J made the point that section 134 does not relate to the offending behaviour as such, but to circumstances bearing on an offender's background.

22. However, in Police v Begg, Nyland J was essentially, preoccupied with a situation in which a larceny offence, related to an offender with a previous conviction, was commenced by complaint pursuant to section 131. She held, in effect, that the prosecution was entitled to elect to do so and was not bound to charge under section 134. The matter then fell to be disposed of only in accordance with section 131 and the penalty provided for in it.

23. With respect, her expressed reasoning does not render it entirely clear to me as to what was her finally concluded view of the effect of the two sections. She had this to say:
"The criteria in s.134 and s.135 deal with the offender's
    background and do not relate to the offending behaviour which is
    the subject of the specific charge. This is more appropriate to
    a differential maximum penalty rather than the creation of a
    separate offence. I believe that the prosecution, in electing to
proceed in this matter pursuant to s.131 as opposed to s.134,
    were choosing between different penalties rather than different
    offences.
    The prosecution, having elected to proceed with the charge
pursuant to s.131 were bound as a result by the maximum penalty
    prescribed by that section. It could not, upon the charge being
proved, seek to bring the matter within s.134. In my view, it is
    irrelevant that the respondent could equally have been charged
with larceny in respect of the same incident pursuant to s.134 of
    the Criminal Law Consolidation Act 1935. If, however, the
    offence had been so charged it would have been a separate offence
    and classified minor indictable as a result of the provisions of
    s.5(5) of the Summary Procedure Act 1921 to which I have already
    referred."

24. I take Nyland J, at one point, to imply that sections 131 and 134 respectively assert two quite separate offences, one being that of committing simple larceny and the other being that of simple larceny after a previous conviction for felony.

25. It is, I consider, necessary to examine relevant aspects of the scheme of Part IV of the CLCA with some care. This is the more so as it does not follow the pattern of the old English Larceny Acts or, for example, the present Criminal Code in Queensland - in relation to which there are very specific ancillary provisions prescribing the detailed processes to be undertaken in cases where recidivist offences are being charged. Indeed it is said that section 630 of the Criminal Code (Queensland) does little more than recognise the old English procedures. Section 630 enacts as follows:
    "The proceedings upon an indictment for committing an offence
    after a previous conviction or convictions are required to be as
    follows, that is to say:-
    (1) The accused person is in the first instance to be called upon
        to plead to so much only of the indictment as charges the
        subsequent offence;
    (2) If he pleads any plea which raises an issue to be tried by a
        jury, the jury have to be charged in the first instance to
        inquire concerning the subsequent offence only;
    (3) If he pleads guilty, or if upon trial he is convicted of the
        subsequent offence, he is then, and not before, to be asked
        whether he had been previously convicted as alleged in the
        indictment;
    (4) If he answers that he had been so previously convicted, the
         Court may proceed to pass sentence upon him accordingly;
    (5) If he denies that he had been so previously convicted, or will
        not answer directly to the question, the jury are then to be
        charged to inquire concerning the previous conviction or
        convictions; and in that case it is not necessary that the
        jury should be sworn afresh, but the oath already taken by
        them is deemed to extend to such last-mentioned inquiry.
    Provided that, if on the trial of a person charged with a
    subsequent offence, he offers evidence of his good character,
    the Crown may, in answer thereto, and before any verdict is given,
    offer evidence of his conviction of the previous offence or
    offences, and in that case the jury are required to inquire
    concerning the previous conviction or convictions at the same time
    that they inquire concerning the subsequent offence."

26. It is trite to say that larceny has always been a common law offence in this State (see Howard, "Criminal Law" 5th Edn, p197, Gillies, "Criminal Law" page 325, Donaldson v Butcher (1932) SASR 16).

27. As was pointed out by Bray CJ in The Queen v Potisk (1937) 6 SASR 389 at 393, unlike the situation with the old English Larceny Act, there is no statutory definition of larceny attempted in the South Australian statute. The provisions of the CLCA merely accept the existence of the common law offence, in relation to which a number of supplementary statutory provisions have been superimposed.

28. It is of particular significance to note the precise mode of expression of sections 131 and 134. They follow a very similar pattern.

29. Section 131 reads as under:-
    "131 Any person convicted of simple larceny, or of any felony by
    this Act made punishable like simple larceny, shall except in the
    cases hereinafter otherwise provided for) be liable to be
    imprisoned for a term not exceeding five years."

30. Similarly section 134 (which was later repealed) was expressed in this fashion:-
    "134 Any person who commits simple larceny after a previous
    conviction for felony, whether the previous conviction took place
    on information before the Supreme Court or before a court of
    summary jurisdiction, shall be liable to be imprisoned for a term
    not exceeding ten years."

31. It is at once to be noted that neither section, in terms, sets out to proscribe particular conduct or to state the elements of an offence. Both proceed on the footing that the offence of "simple larceny" independently exists (as, indeed, it does) and substitute for what would be the otherwise unrestricted common law maximum penalty which would be applicable, more restricted statutory penalties. These vary with the circumstances. In the case of an allegation of an offence of "simple larceny", without more, section 131 stipulates for the maximum sentence of five years. By way of contrast, the section 134 scenario attracts a maximum penalty of imprisonment for ten years.

32. In my view the offence of "simple larceny" to which the two sections advert is the common law offence of simple larceny; and neither section erects a separate statutory offence in its own right. Each merely modifies the incidents of the penalty attaching to the commission of that offence, with section 134 being thrust at the aggravating situation of recidivism.

33. That being so the proper course for the prosecution in the instant case was merely to plead the common law offence and then adopt one or other of the procedures contemplated by Rule 11 of Schedule 3.

34. Bearing in mind the relevant provisions of the Summary Procedure Act, it was necessary for the prosecution, having elected to resort to section 134, to initiate the proceedings by way of information and designate the offence as being minor indictable. This it did. However, it was erroneous for it simply to advert, in the information, to section 131 of the CLCA (which it presumably did on the footing that it was thought that such action created the primary offence of simple larceny).

35. Notwithstanding that error and a failure to employ the rule 11 procedure, it is quite clear that the appellant was not misled, nor was there any prejudice occasioned to him.

36. It is obvious that, from the outset, there was no doubt as to the intention and aim of the prosecution, i.e. to invoke the provisions of section 134. Indeed, it was that very situation and understanding which provoked the stay application, which was argued, as a preliminary issue, before the learned magistrate.

37. I do not have before me any transcript of the submission or detailed ruling of the learned magistrate on that issue. However, the affidavit of Mr Mancini, of counsel for the appellant, clarifies what transpired. Paragraph 3 of it reads as follows:-
    "3 I am informed by counsel that he pursued such an
    application; it was rejected on the basis that Section
    134 of the Criminal Law Consolidation Act was in mandatory
    terms and although apparently arbitrary and oppressive the
    prosecution were only applying the law; that the learned
    magistrate so found and recognised the disadvantage of such
    an offence being declared a minor indictable offence and
    making it obvious that a defendant has an antecedent history for
    felony offences; that the learned magistrate had
    advised that as a result of representations to the
    government about this problem a consequential amendment had
    been passed to Section 5(6) of the Summary procedure Act in
    June 1994 to enable the prosecution to proceed by way of
complaint if it invoked Section 134 or 135 of the Crimial
    (sic) Law Consolidation Act; that prior to that amendment
    the prosecution really had not (sic) choice but to charge
    simple larceny as a minor indictable offence where there is
    an antecedent felony; that the 1994 amendment was of no
    help to the appellant, the prior conviction relied upon was
    over 16 years old and it was not appropriate in all the
    circumstances of the matter to rely on the pleadings of
Section 134 of the Criminal Law Consolidation Act and to do
    so would prejudice or potentially prejudice the fair
    presentation of the appellant's case at trial."

38. I consider that, in all of the circumstances, it cannot be said that the pleading defects constituted any basis upon which it could fairly be argued that the proceedings miscarried at first instance. Certainly no relevant objections were even raised before the learned magistrate.

39. I therefore turn to the contention, rejected by the learned magistrate, that the attempted reliance on section 134 of the CLCA was, in the relevant circumstances, an abuse of process, because of the "staleness" of the earlier conviction relied upon.

40. It is therefore convenient to deal with that aspect first. It gives rise to two successive considerations, namely, whether the Magistrates Court had power to grant a stay and, secondly, if so, whether a stay was, in the circumstances, warranted.

41. In R v O'Loughlin; ex parte Ralphs (1971) 1 SASR 219, the Full Court held that a magistrate sitting as a court of summary jurisdiction, pursuant to the then Justices Act, did not have such a power. That decision stemmed from the point made by Wells J at 286 that:-
    "I think that the argument urged upon us, that such a court
    must have been impliedly invested with a power to stay, founders
    immediately on one of the principles that underlie the "Justices
    Act" as a whole - namely, the principle that a court of summary
    jurisdiction is not continually in session, but is constituted by
    a particular magistrate or particular justices, at a particular
    place, while he or they are sitting either on an original, or on
    an adjourned, hearing. There is not one South Australian Court
    of Summary Jurisdiction, as there is one South Australian Supreme
    Court, which sits at various times and various places but always
    as the same court. Accordingly, even if a magistrate had a power
    to order a stay, it would, at best, bind only him, and could not
    affect the powers, or indeed the duties, of his colleagues. Such
    a state of affairs would produce results so obviously
    inconvenient and disruptive of the orderly administration of
    justice in courts of summary jurisdiction throughout the State,
    that I conclude that the legislature never intended to confer any
    such power."

42. Since that time the former courts of summary jurisdiction, based on a regional concept, have been replaced by a new statutory entity comprised of a Magistrates Court, being an inferior court of record, having State wide jurisdiction.

43. Such a court may only exercise such jurisdiction as is, by statute, expressly conferred on it and has no general inherent powers, The Queen v Grassby (1989) 41 A Crim R 183 at 192-3). However, that is not to say that it does not have implied powers of the nature of that referred to by Dawson J in Grassby.

44. It seems to me that the reasoning applied by this court in Rona v The District Court of South Australia (Full Court, 19 January 1995, unreported) clearly establishes that section 9 of the Magistrates Court Act, 1991, carries with it at least an implied power, vested in that court, to ensure that its processes are not abused - subject to the caveat that, in relation to preliminary examinations, the only powers which, logically, can be exercised are those adverted to, in mandatory terms, by section 107 of the Summary Procedure Act.

45. It is, however, a moot point as to how far such an implied power may extend and it is certainly not appropriate, in the context of this case, to attempt a definitive exercise in that regard. Suffice it to say that it would clearly have power to prevent patent abuses of process evidenced by an improper manner of conduct of proceedings before it.

46. As I understand his argument, Mr Mancini sought to rest his case for a stay on two separate, but interrelated, prongs.

47. First, he said that resort to section 134, in manner adopted in the case at bar, necessarily resulted in an unfair trial, because it signalled to the court that the appellant had a prior conviction for larceny. Second, he contended that the exercise of prosecutorial discretion to proceed in the manner in question - reliant as it was on a manifestly "stale" situation - was patently unfair and ought to have been prevented. Each of these arguments needs to be addressed in turn.

48. In promoting his first point Mr Mancini pointed out that, prior to the amendments of the legislation which took affect in 1992, all prosecutions for recidivist larceny were prosecutions for felony, which attracted trial by jury unless the accused elected to the contrary. The issue of a prior offence invoking section 134 was no more than a circumstance of aggravation, which did not become apparent until after conviction. He complained that, with the implementation of the new system of classification of offences, it became possible, in less serious cases, to charge persons on complaint with summary offences. If section 134 was to be relied on in such cases it became necessary for matters to be initiated and pleaded in a manner which, at the outset, tended to make a magistrate well aware of the existence of a past antecedent history in a manner highly prejudicial to an accused. He was driven to contend that the court ought not to countenance such a situation and ought, by means of use of the implied stay power, to insist on all section 134 matters involving small values to be prosecuted simply as summary matters.

49. The short riposte to that argument is that it is not for the court to attempt to thwart the unambiguously expressed will of Parliament. There is nothing in Ross v R (1979) 25 ALR 137, relied on by Mr Mancini, which requires a contrary conclusion. The amendments to the legislation above referred to had the practical effect which I have earlier recited and the legislature must be taken to have intended to bring about the attendant practical end result. When all is said and done there is nothing new or radical about the provisions of Rule 11 of Schedule 3 and that plainly requires disclosure of the relevant prior conviction by one of the two modes contemplated.

50. It must firmly be borne in mind that we are not here contemplating prejudicial impact upon a jury. Relevant matters are dealt with by legally qualified magistrates who, routinely, perhaps in the course of voire dire inquiries, as adverted to by Mr Hinton, of counsel for the prosecution, need to and do became aware of many situations and aspects of potential evidence, which, in the end, they are required to put to one side and ignore. Their legal training enables them to do so - except, perhaps, in extreme cases - and it has never been suggested that this is an improper situation which militates against a fair trial. Were it otherwise the administration of the law would become unworkable.

51. There is, in my assessment, nothing in the point sought to be made.

52. As to the second facet Mr Mancini almost passionately condemned the approach which had been adopted by the prosecution as being inconsistent with what, he asserted, was the plain intention of the legislature. He submitted that provisions such as section 134 had a long history and were aimed at true recidivist situations. It was, he argued, a patent and unfair distortion of the intention of the enactment to plead a prior, stale conviction so as to seek to obtain an increased penalty. It offended against reasonable community expectations of fair prosecutorial conduct and gave rise to an inference of almost improper, collateral motive.

53. Whilst one may express some surprise at the course adopted by the prosecution in this matter, there is not a scintilla of evidence to suggest any improper motive on its part. The fact of the matter is that the election made falls fairly and squarely within the expressed scheme of the CLCA, which does not impose any qualification on the elapsed time since the previous felony conviction. One asks, rhetorically, if there is force in the type of argument advanced, where is the line to be drawn? At what point is it to be concluded that a prior conviction is so stale that it would be unfair and improper to rely on it? Such questions are incapable of logical answer.

54. Mr Mancini's plea simply cannot succeed in face of a situation in which the prosecution has elected to do that which the statute unequivocally authorises it to do. As Mr Hinton argued, the well settled general principle, save for what was said in Rona v The District Court of South Australia, is that the exercise of prosecutorial prerogative to charge an accused in a particular fashion is not subject to review by the court. (See Director of Public Prosecutions v Humphrys (1977) AC 1, Connelly v Director of Public Prosecutions (1964) AC 1254, Barton &; Anor v The Queen &; Anor (1980) 147 CLR
75 at 94-5, Jago v The District Court of New South Wales and Ors (1989) 168 CLR 23 at 39,77.)

55. In Jago are to be found various expressions as to when the court is justified in exercising a power to stay for abuse of process. In essence many of these come to a consideration as to whether or not it may be said that the prosecution is attempting to utilise a criminal process, which it is legally entitled to initiate, in a manner inconsistent with the true purpose underlying the existence of that entitlement.

56. For present purposes there is one dictum of Mason CJ in Jago which provides the key to a proper solution of the matters debated in the present case. As he said, at page 34 of the report, to justify a permanent stay there must be shown to be some fundamental feature going to the root of the trial which is of such a nature that nothing a trial judge can do in the conduct of it can relieve against its unfair consequences.

57. In the instant case such a test cannot be satisfied. It is beyond question that, even if it was thought inappropriate and potentially unfair that section 134 was being invoked by virtue of a stale prior conviction, it still remains within the sentencing discretion to decide what weight ought to be accorded to that conviction in arriving at the eventual sentence. So far as the appellant was concerned it is patent that little or no weight ought, logically, to have been attributed to it. But a glance at the penalty imposed by the learned magistrate indicates to me that he made precisely that assessment of the situation.

58. It only remains to consider the contentions advanced in the supplementary grounds of appeal contained in the document tendered by Mr Mancini when this matter was called on. Those grounds are expressed at some length, but basically seek to attack various findings of fact made by the learned magistrate.

59. The reasons for decision given by the learned magistrate are relatively brief and I take them to have been ex tempore. Notwithstanding their brevity the basis of reasoning is clear and the findings made quite specific.

60. On a reading of the reasons as a whole it becomes quite apparent that the learned magistrate did not accept the appellant as a credible and reliable witness and accepted, as accurate, the evidence of the witness Follett.

61. A consideration of the transcript immediately reveals that there were substantial reasons why he should have arrived at that conclusion. Quite apart from the fact that the version of events related by the appellant was such that it naturally attracted some scepticism, it cannot be overlooked that there was a major inconsistency arising from certain interchanges which took place as between himself and Follett when she was questioning him.

62. When she asked him (apropos the salami) "if you paid for this salami why did you throw it away as we came back into the store" he responded "it's not mine". There is no doubt that it was in fact that which he had purchased; and it was not until trial that he proffered the story that he had become impatient and positively thrown away the salami prior to going past the checkout. The location in which it was found was, of course, entirely inconsistent with that version of events.

63. At the end of the day the learned magistrate summarized his net conclusions in this way:-
    "I accept that you had been served at the seafood counter,
    that you had been served with the package of seafood mix. That
    you placed that inside your coat under your left armpit and that
    you then went to the delicatessan (sic) and after some wait
    obtained a packet of salami and that you placed that under your
    right armpit and that at all times it was your intention to go
    from the store and not pay for either item. That is in fact what
    you did and in an attempt to disguise the face you undertook
    action to the glass doors in the hope that the article, the
    salami would fall out from underneath your armpit which in fact
    it did. Your actions weren't completely successful because the
    seafood didn't fall out as well and you were stuck with that and
    therefore having to make excuses as to how it came to be in your
    possession."

64. Quite apart from the fact that the evidence pointed strongly to that situation, the ultimate findings were, in large measure, the product of conclusions as to the relative credibility of the appellant and Follett, arrived at in light of the totality of the circumstantial evidence placed before the court.

65. In this regard I merely reiterate what I recently said in another setting. Whilst it is always the case that the appellate court must make its own independent assessment of the evidence, it will necessarily defer to the assessment of the judicial officer presiding at trial - who had the considerable advantage of seeing and hearing the witnesses in the atmosphere of the trial - as to issues of credibility, unless an appellant can demonstrate truly compelling reasons to doubt the validity of the assessment made. As was reiterated in Devries and Anor v Australian National Railways Commission and Anor (1993) 112 ALR 641 at 646, if the finding of the trial judge depends to any substantial degree on the credibility of witnesses, that finding must stand unless it can be shown that the trial judge has failed to use, or has palpably misused, his or her advantage, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable.

66. Whilst I have carefully considered all of the earnest submissions advanced by Mr Mancini on this aspect of the case I remain quite unconvinced that the learned magistrate fell into error. On the contrary, my independent review of the evidence leads me, unerringly, to the same conclusion. Questions of credibility and circumstantial evidence were undoubtedly intertwined, but the case against the appellant was such as to leave no room for reasonable doubt, once the credibility issue was resolved.

67. It follows that this appeal must be dismissed. There will be an order accordingly. ADDENDUM Since writing the above reasons my attention has been drawn to the fact that, by virtue of subsection (2) of section 274 of the Criminal Law Consolidation Act, 1935, Rule 11 of Schedule 3 does not apply to informations presented to the Magistrates Court. However, in my opinion, that rule does no more than reflect what is, in any event, the common law situation. (See the reasoning in Kingswell v The Queen (1985) 159 CLR 264, The Queen v Meaton (1986) 160 CLR 359.)