Peluso v Police - [2018] SASC 63

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PELUSO v POLICE
[2018] SASC 63
Judgment of The Honourable Chief Justice Kourakis
18 May 2018
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
EVIDENCE - PROOF - CORROBORATION - FALSE DENIALS AND LIES
This is an appeal against a conviction entered in the Magistrates Court on a charge of theft of meat to the value of $140 from a Coles Supermarket. The appellant challenges the conviction on the grounds that the conviction is not supported by the evidence and that the Magistrate erred in treating, as probative of guilt, evidence of lies told by the appellant.
Held, dismissing the appeal:
1. The evidence establishes the guilt of the appellant beyond reasonable doubt.
2. The telling of the lie was probative of the appellant’s guilt.
3. Although the Magistrate erred in law in failing to give reasons for excluding any innocent explanation for the lie, there has been no miscarriage of justice.
R v Sekrst [2016] SASCFC 127; R v Quist (2017) 127 SASR 471; Edwards v The Queen (1993) 178 CLR 193; Zoneff v The Queen (2000) 200 CLR 234; R v Howard (2005) 156 A Crim R 343; Petty and Maiden v The Queen (1991) 173 CLR 95, discussed.

PELUSO v POLICE
[2018] SASC 63
Magistrates Appeal: Criminal

KOURAKIS CJ: This is an appeal against a conviction entered in the Magistrates Court on a charge of theft of meat to the value of $140 from a Coles supermarket.
The appellant, Mr Patrick Peluso, challenges the conviction primarily on the grounds that it is not supported by the evidence, and that the Magistrate erred in treating, as probative of guilt, evidence of lies told by the appellant.
The appeal must be dismissed. Evidence of the way in which the appellant loaded his shopping basket with the meat, and walked out of the supermarket without passing through a checkout, was given by a Coles security officer. CCTV footage showed the appellant walk across a thoroughfare and then swap the basket from one hand into another as he walked through a nearby café towards the carpark. That evidence in itself supports the finding of guilt made by the Magistrate. The appellant’s false statement to police, repeated in his evidence, that he told the security officer that he was going to his car to retrieve his wallet, was additional circumstantial evidence of his guilt. Even though the Magistrate erred in law in failing to give reasons for excluding any innocent explanation for that lie, there has been no miscarriage of justice. I elaborate on my reasons below.
The evidence
On 7 February 2017 Mr Peluso visited the Coles supermarket at Greenacres. At about midday a security officer, Mr Gill, saw Mr Peluso throwing packets of what he described as “high value…

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 Peluso v Police

Details

AGLC: Peluso v Police [2018] SASC 63
Case: [2018] SASC 63
Decision Date: 18 May 2018

CaseChat Overview and Summary

The appellant, Mr. Peluso, appealed against his conviction and sentence for theft to the Supreme Court of South Australia. The conviction arose from an incident in which Mr. Peluso was observed by a security officer at Coles supermarket loading high-value meat into a shopping basket and leaving the store without paying. Mr. Peluso claimed he intended to return to pay for the meat but forgot his wallet in his car. The central legal issues for the court to determine were whether the evidence supported the verdict of the trial magistrate and whether the verdict was unreasonable or insupportable.

The court found that the evidence presented by the security officer and the CCTV footage sufficiently supported the magistrate's finding of guilt. The officer's testimony, corroborated by the video evidence, demonstrated that Mr. Peluso deliberately loaded the meat into his basket and left the store without paying. The appellant's false statement to police about retrieving his wallet further supported his guilt. Although the magistrate did not provide reasons for excluding any innocent explanation for this lie, the court determined that this did not result in a miscarriage of justice. The evidence overwhelmingly supported the finding that Mr. Peluso intended to steal the meat.

Given the substantial evidence against Mr. Peluso, the court dismissed the appeal. The court held that the evidence was compelling enough to sustain the conviction, and any error in the magistrate's reasoning did not affect the overall outcome. The appeal was thus unsuccessful, and the original conviction and sentence were upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appeal must be dismissed. Evidence of the way in which the appellant loaded his shopping basket with the meat, and walked out of the supermarket without passing through a checkout, was given by a Coles security officer. CCTV footage showed the appellant walk across a thoroughfare and then swap the basket from one hand into another as he walked through a nearby café towards the carpark. That evidence in itself supports the finding of guilt made by the Magistrate. The appellant’s false statement to police, repeated in his evidence, that he told the security officer that he was going to his car to retrieve his wallet, was additional circumstantial evidence of his guilt. Even though the Magistrate erred in law in failing to give reasons for excluding any innocent explanation for that lie, there has been no miscarriage of justice. I elaborate on my reasons below.The evidence On 7 February 2017 Mr Peluso visited the Coles supermarket at Greenacres. At about midday a security officer, Mr Gill, saw Mr Peluso throwing packets of what he described as “high value meat” into a shopping basket. Mr Peluso then walked past the vegetable section, looking about himself as he went, and out of the supermarket without passing through a checkout or making payment. CCTV footage shows Mr Peluso walking purposefully out of the Coles supermarket, across an internal mall, and into a café on the opposite side. The CCTV footage shows Mr Peluso changing the carry basket from one arm to another without pausing as he walks through the café. It then shows Mr Gill catching up with Mr Peluso about halfway through the café before Mr Peluso had reached the exterior doors of the café which led into the carpark. Mr Gill and Mr Peluso are then shown walking back towards the Coles supermarket. It is common ground that Mr Gill asked Mr Peluso to come back into the store. Mr Peluso did so but placed the basket on the floor of the supermarket just a short distance into the store before leaving and walking to his car in the carpark. Mr Gill followed him there and took a photograph of his car. Mr Gill recorded its registration number. In cross-examination Mr Gill testified that Mr Peluso was not looking at the vegetables as he walked past that section, but was looking more widely from side to side. Mr Gill also denied that Mr Peluso said something about his wallet being in the car when he was stopped. The Magistrate accepted Mr Gill’s evidence. Mr Peluso was spoken to by police in his home on 23 February 2017. When asked what he could say about the alleged theft, Mr Peluso responded:Well as I said, I got some meat and I was going down to pay for it, and I realised that I’d left my wallet in the car and I actually went the wrong way, ‘cos I sort of forgot where I parked, and I thought if I go straight through to the café I’ll get straight to my car. I observe that on one reading that answer suggests that Mr Peluso realised he did not have his wallet before walking out of the Coles supermarket, and left knowing he had the meat, but intending to return to pay for it. Mr Peluso told the police that when he was stopped by Mr Gill he said:And I told him what, you know, what I was doing and I, and I said here I was just about to turn around and go bring it back and say to the lady, just keep this here, while I was gonna go get my wallet.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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