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 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.
In that answer Mr Peluso, at least implicitly, was asserting that he only realised he had the meat when he was in the café. It is also in that answer that Mr Peluso, on the Magistrate’s finding, lied to police about telling Mr Gill that he was about to get his wallet.
Later in the interview, Mr Peluso said that he realised he didn’t have his wallet with him just before he got to the front of the Coles store, but then walked out without going through a checkout because he “sort of forgot” that he was still carrying the meat. Mr Peluso told police that when he was in the café he also became anxious, and distracted by the thought, that he may have left his car unlocked.
Mr Peluso explained to police that after he returned to the store with Mr Gill he decided not to buy the meat because of the way he had been treated and left the store.
Mr Peluso gave evidence at his trial. He agreed that he placed chicken and steak in his basket and then explained his movements thereafter as follows:
Started walking down towards the vegetable section, thinking ‘do I need anything else? potatoes, onions’. And I thought ‘no I got this, I got that’. And that’s when I just sort of, didn’t realise and just walked out, forgot all about it and was even going the wrong way and just as I realised ‘God, I’ve left my wallet in my car and I’ve still got the meat on me’. Just as I was gonna turnround, that’s when he sort of grabbed me on the shoulder. Which I tried to explain it to them, but like I said I couldn’t really understand him properly and you know, and I told him all of this and they just sort of, you know, like they’d already made up their mind sort of thing and, so I placed the basket down near the front counter as you’re going out and went to my car.
The Magistrate rejected the underlined assertion in that answer, accepting instead Mr Gill’s testimony that no such statement was made.
Mr Peluso testified that before he left to return to his car he told Mr Gill to come to the car and that he would show him that he had his wallet there. Mr Peluso denied that he intended to steal the meat.
In cross-examination the police prosecutor put to Mr Peluso that the account he gave to the interviewing police officer that he had forgotten his wallet and was going to his car to retrieve it was untrue and implausible. The prosecutor put that it was “an attempt to disguise dishonesty.”
Mr Peluso denied that proposition. Mr Peluso testified that he could not recall whether, when he eventually returned to his car, it was locked or not. Mr Peluso, in answer to questions from the Magistrate towards the close of cross‑examination, said that when he saw Mr Gill taking a photograph of his car he held up his wallet for him to see it. Mr Peluso had not earlier mentioned that he had done so.
The Magistrate’s reasons
The Magistrate directed himself in the following terms on the approach to the evidence in determining the appellant’s intention:
[8]As a general proposition, a person is taken to have intended the natural and probable or ordinary consequences of his or her conduct. To take a simple example, if a person takes up a loaded firearm, points it at another person and pulls the trigger, then generally speaking that can be evidence that it was the first person’s intention to kill, or at least seriously harm, the person, the subject of the bullet that would have come out of the firearm in those circumstances.
[9]Here, the prosecution case with respect to the issue of intention is circumstantial. It is based on a consideration of the defendant’s conduct, as to which I am still to pronounce in my assessment, and it is based on the contention that there is no explanation for that conduct other than that the defendant intended to leave the store, or the confines of it, knowing that he had the meat in his possession, but not only that, but also knowing that he was leaving without paying for it and intending to leave without paying for it.
Although not a ground of appeal, in the course of the appeal hearing a question arose as to the correctness of the legal directions in those paragraphs on how a state of mind might be inferred from conduct. Counsel for the police properly accepted that, read in isolation, the first sentence in paragraph [8] is wrong in law. However the remainder of paragraphs [8] and [9] correctly state the law. Reading the directions as a whole, it is clear that the Magistrate ultimately approached the question of intention as one of fact concerning Mr Peluso’s subjective state of mind, which the prosecution was required to prove. I am not persuaded that, read as a whole, the Magistrate committed the error of presuming a guilty intention from the appellant’s objective conduct. I am satisfied that the Magistrate meant no more than that the appellant’s conduct was evidence, but was not conclusive, of his subjective state of mind.
The Magistrate then set out the evidence of Mr Peluso’s conduct from which inferences might be drawn about his intention. That evidence was largely the undisputed evidence that Mr Peluso had placed the meat in the basket, left the store without offering to pay for it, and then walked across the mall into the adjacent café.
In paragraph [11] of the reasons the Magistrate set out the, again undisputed, evidence that Mr Peluso returned to the front of the store before placing the basket of meat down and leaving to return to his car.
In paragraphs [22]-[24], the Magistrate referred to the submissions made by Mr Peluso’s counsel that Mr Peluso:
·had not acted surreptitiously in selecting the meat;
·had not attempted to conceal the meat; and
·had walked to his vehicle knowing that he would be able to be identified by the taking of the registration number.
The Magistrate acknowledged that those matters were important in the assessment of Mr Peluso’s credibility.
The Magistrate then expressly addressed the conflicting testimonies of Mr Gill and Mr Peluso as to what Mr Peluso had said when he was stopped in the café. The Magistrate’s findings in that respect are as follows:
[30]Insofar as Mr Gill is concerned, I have no hesitation in accepting him as a witness of truth and I have no hesitation in accepting that his evidence was generally, certainly, an accurate recollection of all relevant events, including the discussion or any discussion you might have had with Mr Peluso.
[31]I have a different view with respect to the evidence of Mr Peluso. I believe that Mr Peluso, in his record of interview and in his evidence, has not told the truth of the matter. I consider Mr Peluso’s evidence of having explained to Mr Gill his intention of going to his car to get his wallet and of having offered to Mr Gill to accompany him for that purpose so that he could effectively establish his bona fides in that respect and of having held up his wallet to show to Mr Gill as he was in his vehicle, I regard all of that evidence of Mr Peluso to be falsely given. I have considered whether it has been given falsely because of a consciousness of guilt, and in my view, there can be no other conclusion reached.
The Magistrate’s final conclusions and reasons for finding Mr Peluso guilty are as follows:
[32]I also do not accept Mr Peluso’s evidence for his reasons for leaving the confines of the store without offering to pay. I don’t accept the explanation that he gave for that in the record of interview. What he appeared to be suggesting was that he left the store effectively not conscious of the fact that he was leaving it with a quantity of meat that he had not offered to pay for and it was only in the café immediately before Mr Gill spoke to him that he realised that that was the case and that immediately before Mr Gill spoke to him, he [Mr Peluso] had decided that he would return to the store. To quote from the record of interview, “I was just about to turn around and go bring it back and say to the lady, just keep this here while I was going to go get my wallet”. I do not accept that evidence of Mr Peluso. I consider it was a false explanation given in the record of interview and to the extent that he repeated it in his evidence, it was evidence falsely given.
[33]In my view, on the assessment of the evidence that I have arrived at, bearing in mind of course, what I have said about my rejection of those aspects of the evidence of Mr Peluso that I have just identified, the circumstantial evidence is such as to exclude any explanation for the conduct of Mr Peluso other than he did intend to leave the store, did so knowingly, that is knowing that he had the meat with him and knowing that he had not offered to pay for it or tendered payment for it. For the avoidance of doubt, I am satisfied that the prosecution have proven beyond a reasonable doubt all elements of the offence including the intention, that is, including that Mr Peluso acted dishonestly on the occasion in question.
Grounds of appeal
The grounds in the appellant’s notice of appeal are:
1.   The verdict is against the weight of the evidence.
2.   The learned Magistrate erred by rejecting beyond reasonable double the evidence of the defendant.
3.   The learned Magistrate failed in finding all the elements of theft proved beyond reasonable doubt.
4.   The learned Magistrate failed to adequately explain why he rejected the evidence of the defendant.
On Mr Peluso’s written submissions, the grounds were recast as follows:
A1.The Magistrate’s failure to warn the defence that Mr Peluso’s statements about what he said to Mr Gill might be used as evidence of guilt if found to be false resulted in a miscarriage of justice.
A2.The lies relied on by the Magistrate could not support an inference of guilt.
A3.The reasons did not describe why the Magistrate rejected any innocent explanation for Mr Peluso’s lie.
A4.The reasons did not disclose why the Magistrate rejected the possibility that Mr Peluso innocently left the store to get his wallet.
A5. The Magistrate reversed the onus of proof.
A6. The verdict was not supported by the evidence.
The appellant’s primary complaint concerns the use of consciousness of guilt reasoning in paragraph [31] of the Magistrate’s reasons. The appeal in this respect is multi-faceted, including complaints that:
·The trial miscarried because the Magistrate failed to forewarn defence counsel that he might use the lies as evidence of consciousness of guilt;
·The Magistrate failed to explain why he had excluded possible rejection of any innocent explanations for the lie; and
·The lie was incapable of evidencing a consciousness of guilt.
A false statement made by a defendant on a material issue may evidence a consciousness of guilt if it is deliberately untruthful.[1] It is said that it is open to a tribunal of fact to find that such a lie was told because the defendant appreciated that the truth of the subject matter of the lie would implicate him or her in the offence or an element of it. It is that awareness which is described as a consciousness of guilt. The traditional formulation of the reasoning process has the appearance of circularity, because a finding that the lie was told out of an awareness that the truth was inculpatory cannot be made without first finding that the appellant committed the offence. Put differently, the formulation suggests that a finding of guilt is made on the basis of the telling of the lie alone. It is perhaps for that reason that it is commonly thought that a court must be satisfied beyond reasonable doubt that the reason for the lie is a consciousness of guilt before it can be used as evidence of guilt. However, that onus applies only in the uncommon circumstance that the lie is the only evidence of guilt of an element, or elements, of the offence.[2]
[1] R v Sekrst [2016] SASCFC 127 at [40]-[44]; R v Quist (2017) 127 SASR 471 at 523; Edwards v The Queen (1993) 178 CLR 193 at 209; Zoneff v The Queen (2000) 200 CLR 234.
[2] Edwards v The Queen (1993) 178 CLR 193 at 210.
The reasoning by which a deliberate lie on a material issue may support an inference of guilt is inductive and circumstantial rather than deductive. Where a deliberate lie has been told on a material issue its probative force, as the authorities emphasise, depends critically on whether there may be an innocent explanation for it. The likelihood of an innocent explanation can be evaluated as a matter of human behaviour, independently of the evidence implicating the defendant in the commission of the offence charged. If there is no credible innocent explanation for a deliberate telling of a material falsehood, then the telling of it strongly supports an inference that the lie was told in an attempt to distance the accused from the offence charged. The more credible, and likely, that the innocent explanation for the lie is, the weaker the inference that it was told out of a consciousness of guilt.
In this case the innocent explanation pressed by Mr Peluso’s counsel for the lie was that Mr Peluso panicked when he was spoken to by police. There are four major difficulties with that contention. First, the interview took place some weeks after the incident occurred. Secondly, Mr Peluso’s admitted conduct does not suggest that he is a man easily panicked. He did not feel obliged to stay in the store after Mr Gill asked him to return but, on his own account, affronted by Mr Gill’s attitude, he decided that he would walk away and “spend his money elsewhere”. Nor is there any indication of panic or concern in the tone and nature of Mr Peluso’s recorded conversation with the interviewing police officer. The interview was conducted in a relatively subdued tone and at a leisurely pace; Mr Peluso appears comfortable in giving his narrative. Thirdly, the lie is relatively sophisticated. Mr Peluso did not merely claim, for example, that he had forgotten he was carrying the meat. Mr Peluso invented the spontaneous making of an exculpatory statement to the security officer at the earliest possible opportunity. Fourthly, and importantly, the lie was repeated in evidence in a trial in which Mr Peluso was represented by counsel. Panic is a most improbable explanation for what in effect was a cleverly told, and repeated, lie. The lie is therefore strong evidence of Mr Peluso’s guilt.

However, the Magistrate gave no such reasons for rejecting panic as an explanation for the lie. Indeed, at [31] of his reasons the Magistrate did no more than assert that no other conclusion could be reached. It is the absence of a credible, innocent explanation for the lie that is, as I have just explained, critical to the use of a lie as evidence of guilt. Accordingly it must be accepted that the Magistrate’s reasons are inadequate in a material respect.
Despite the initial form of grounds 2 and 4 of the Notice of Appeal, no complaint was made on the appeal that the Magistrate had not adequately explained why he accepted Mr Gill’s testimony over that of Mr Peluso. In any event, that finding is adequately explained in [30]-[31] of the Magistrate’s reasons. The appeal to this Court is by way of rehearing. The assessment of whether there is a credible, innocent explanation for Mr Peluso’s lie does not depend on an evaluation of any oral testimony because Mr Peluso’s case was that he had told the truth. Nor did Mr Peluso give any evidence that he was in any way anxious or had panicked when he spoke to the police. Accordingly this Court is, on appeal, in as good a position as the Magistrate was to assess whether there are any innocent explanations for the lie.
For the reasons I have given, I do not accept that panic is a likely explanation for the lie told by Mr Peluso. The telling of the lie was probative of Mr Peluso’s guilt and I dismiss those grounds of appeal that contend otherwise.
The appellant also complains that the Magistrate’s reasons were inadequate in explaining why his Honour ultimately excluded any innocent explanation for the appellant leaving the store without paying. Of course the only innocent explanations applicable in the circumstances of this case were either that Mr Peluso forgot he had not paid, or that he always intended to return to the store to pay for the meat. Once Mr Peluso’s evidence had been rejected, the evidence of the brazen way in which he left the store without hesitation, the movement of the basket from one hand to another and his lie all strongly supported a finding of guilt. Those circumstances are all mentioned by the Magistrate. His reasons in that respect are adequate. The reasons show that the Magistrate correctly applied the onus of proof, finding in [33] that the circumstantial evidence excluded any explanation for Mr Peluso’s conduct other than that he intended to take the meat without paying for it, and concluding that the offence had been proved beyond reasonable doubt. Moreover those factors support the finding beyond reasonable doubt. Accordingly, appeal ground 3, reformulated as A4, must also be dismissed.
I therefore dismiss those grounds of appeal which complain that the Magistrate’s reasons were inadequate.
The evidence of the way in which Mr Peluso selected the meat and left the store without paying, together with the evidence of the lie concerning his conversation with Mr Gill, proves his dishonesty beyond reasonable doubt. I therefore dismiss the ground of appeal that the conviction is not supported by the evidence.
I observe here that, although not a ground in the notice of appeal, counsel adopted as an additional ground in the hearing of the appeal, after his attention was drawn to the problem, that there was no independent evidence that Mr Peluso had not waved his wallet at Mr Gill after he got into his car. The Magistrate was entitled to disbelieve Mr Peluso, but the mere rejection of his testimony to that effect did not prove the converse, that is that is that he did not wave his wallet. Mr Gill was not asked, and therefore did not give evidence, that Mr Peluso had not waved his wallet at him. Therefore the mere disbelief of Mr Peluso on that issue could not be used as evidence of guilt. However, for the reasons I have just given, the Magistrate’s rejection of Mr Peluso’s testimony not having been impeached, the other evidence proves Mr Peluso’s guilt beyond reasonable doubt.
The Magistrate did not forewarn Mr Peluso’s counsel that if he were to find the statements to be lies he would use them as evidence of guilt. As a general proposition, in a trial by judge alone it is not necessary for counsel to be warned about the possible uses to which the judge may put the evidence. Counsel is expected to have a ready appreciation of the way in which evidence might be used and it is the duty of counsel to anticipate the proper use of the evidence. On some occasions the use of evidence in a particular way might be eschewed by the prosecution, or for some other reason counsel for a defendant might be excusably surprised by the use to which evidence is put. Moreover, in some cases of surprise a defendant may be denied an opportunity to examine or cross‑examine existing witnesses or call other evidence to meet the use made by the judge of the evidence.[3] However, this was not such a case. Mr Peluso’s credibility was very important given his testimonial assertion that he always intended to pay for the meat. Mr Peluso’s credibility was attacked because his account of the conversation with Mr Gill, given both to the police officer and testimonially, was denied by Mr Gill. Both Mr Gill and Mr Peluso were examined and cross-examined on that conversation. In an affidavit filed after the hearing of the appeal, pursuant to leave given by me, Mr Peluso’s trial counsel addressed what he might have done if the Magistrate had forewarned him that the lies may be used as evidence of guilt. The only forensic change which he identified was that he may have cross-examined Mr Gill further in relation to inconsistencies. The content of that cross‑examination was not identified. As I have already observed, the disputed contents of the conversation between Mr Gill and Mr Peluso were a central issue, and were extensively covered, at trial. Therefore, the ground of appeal which complains of a breach of procedural fairness must also be dismissed.
[3] R v Howard (2005) 156 A Crim R 343 at 351-2.
Finally, I mention that in the course of the hearing of the appeal I raised with counsel whether the failure, on the Magistrate’s findings, of Mr Peluso to tell Mr Gill that he was about to return the basket before retrieving his wallet from the car was evidence contradicting his asserted state of mind. Of course, evidence of silence in the face of an express or implied accusation, especially by a person in authority, is not accepted as evidence of guilt, not because it is not probative as a matter of human experience, but because it would undermine the fundamental procedural rule of a common law criminal trial. In Petty and Maiden v The Queen[4] Mason CJ, Deane, Toohey and McHugh JJ said:
A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country. An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless.
[4] (1991) 173 CLR 95 at 99.
However, the evidential value of Mr Peluso’s silence is not in failing to explain his conduct, but in failing to state what was on his mind as to his prospective conduct.
Be that as it may, it is not necessary to explore that question any further because the evidence to which I have earlier referred establishes Mr Peluso’s guilt beyond reasonable doubt.
I dismiss the appeal.