Perna v Police - [2007] SASC 306

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PERNA v POLICE
[2007] SASC 306
Judgment of The Honourable Chief Justice Doyle
21 August 2007
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - RECEIVING AND POSSESSION OF PROPERTY STOLEN OR REASONABLY SUSPECTED OF BEING STOLEN OR UNLAWFULLY OBTAINED - POSSESSION OF PROPERTY STOLEN OR SUSPECTED TO BE STOLEN OR UNLAWFULLY OBTAINED - POSSESSION, CUSTODY, ETC
Appeal against conviction recorded in Magistrates Court - whether Magistrate erred in finding appellant was in possession of goods.
Held: possession requires consideration of nature and extent of control of goods at relevant time - at relevant time, appellant had complete present personal physical control of property to exlusion of others - in the circumstances goods were under appellant's control - appeal dismissed.
Summary Offences Act 1953 (SA) s 41, referred to.
Moors v Burke (1919) 26 CLR 265; Williams v Douglas (1949) 78 CLR 521, applied.
Dib & Dib (1991) 52 A Crim R 64, distinguished.
Palumbo v O'Sullivan [1955] SASR 315; Hofstetter v Thomas [1968] VR 199; Beard v Brebner [1962] SASR 223; R v Van Swol [1975] VR 61, discussed.
Borrillo v Bartlett [1966] SASR 286; Brook v Whitebread [1966] SASR 310; The Queen v Boyce (1976) 15 SASR 40; He Kaw Teh v The Queen (1985) 157 CLR 523, considered.

PERNA v POLICE
[2007] SASC 306
Magistrates Appeal: Criminal

DOYLE CJ: Mr Perna was found guilty by a Magistrate of being in possession of property on 11 October 2005 which was reasonably suspected of having been stolen or obtained by unlawful means, contrary to s 41(1) of the Summary Offences Act 1953 (SA). The property consisted of kitchen appliances. I will refer to the property simply as the kitchen appliances. It comprised some dishwashers, range hoods, cook tops, ovens and a hotplate. The kitchen appliances were in a shed on property owned by another person.
Mr Perna appeals against the conviction. The appeal raises the question of whether the Magistrate erred in finding that Mr Perna was in possession of the kitchen appliances.
That in turn raises the question of the nature and extent of control over the kitchen appliances that was being exercised by Mr Perna at the relevant time, and that was required to support a finding that Mr Perna was in possession of the appliances.
Facts
I begin with some matters that are not in dispute. They can be treated as findings by the Magistrate.
On 11 October 2005 the police went to premises at Main North Road. The premises were occupied by Mr and Mrs Ward. They ran a car yard from the premises. There was a large shed at the rear of the premises. Access could be gained to the shed only by passing through the car yard.
Mr Perna had just driven a van into the premises, and had backed it just inside the shed through an open door. Mr Perna and Mr Ward were standing by the van, in…

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 Perna v Police

Details

AGLC: Perna v Police [2007] SASC 306
Case: [2007] SASC 306
Decision Date: 21 August 2007

CaseChat Overview and Summary

In the case of Perna v Police, the defendant was charged with possession of stolen property after police found new kitchen appliances in a shed on premises he was permitted to use. The appeal against the conviction was heard in the Supreme Court of South Australia. The primary legal issue was whether the defendant had sufficient control over the kitchen appliances in the shed to be considered in possession of them, given that he did not have keys and had to rely on the owners or another business to access the shed. The court had to consider the nature of the defendant's access and control over the shed and its contents, and whether this amounted to possession for the purposes of the criminal law.

The court examined the evidence and found that the defendant had been given permission to use the shed to store property, and he had indeed stored some of the stolen appliances there. The court held that the defendant had exercised sufficient control over the appliances to be considered in possession of them, despite not having keys to the shed. The court reasoned that the defendant's arrangement with the owner of the premises gave him the right to access the shed and store goods there, and his actions in storing the stolen appliances in the shed demonstrated control over them. The court found that the defendant's lack of physical control due to the need to rely on others for access did not negate his possession, as long as he had the ability to exercise control over the property when he chose to do so.

Based on this reasoning, the appeal was dismissed, and the conviction for possession of stolen property was upheld. The court confirmed that the defendant's actions and the nature of his access to the shed were sufficient to establish possession for the purposes of the criminal law.

Orders

Orders of the court

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Background

Background to the litigation

That in turn raises the question of the nature and extent of control over the kitchen appliances that was being exercised by Mr Perna at the relevant time, and that was required to support a finding that Mr Perna was in possession of the appliances.Facts I begin with some matters that are not in dispute. They can be treated as findings by the Magistrate. On 11 October 2005 the police went to premises at Main North Road. The premises were occupied by Mr and Mrs Ward. They ran a car yard from the premises. There was a large shed at the rear of the premises. Access could be gained to the shed only by passing through the car yard. Mr Perna had just driven a van into the premises, and had backed it just inside the shed through an open door. Mr Perna and Mr Ward were standing by the van, in or close to the shed. Inside the van were a number of new kitchen appliances. They were of a similar kind to the kitchen appliances in question. Mr Perna pleaded guilty to having stolen the appliances in the van. Inside the shed the police found the kitchen appliances. They were new. All or most of them were in boxes. Also in the shed was a campervan, belonging to a friend of Mr Ward, and a number of items belonging to Mr Ward. About six months before this day Mr Ward had agreed to allow Mr Perna to use the shed to store property, in return for a monthly payment of $50. Mr Perna did not have keys to the shed. He could get into the shed at any time during business hours, because the shed was routinely opened at the beginning of a working day and closed at the end of the day. The shed was partitioned. Mr Stagg, under an arrangement with Mr Ward, used the other part of the shed for the purposes of his business as a car wholesaler. Mr Stagg had keys to both parts of the shed, and would open the part of the shed in which the kitchen appliances were found, if Mr Ward had not already done so. Either Mr Ward or Mr Stagg opened the shed up each business day and closed it at the end of the day. Having regard to the Magistrate’s brief reasons, and to her finding of guilt, I am satisfied that she must have made the following findings, and that those findings were able to be made on the evidence. I confine myself to findings that are relevant to the issue of possession. The only keys to the shed were held by Mr and Mrs Ward and by Mr Stagg. Mr Perna was entitled to have access to the shed during business hours, and to store goods there, under his arrangement with Mr Ward. Mr Perna had gone to the shed on a number of occasions, sometimes with another person. Mr Ward did not pay much attention to what Mr Perna was doing when he went to the shed. The kitchen appliances in the shed were not there before Mr Ward agreed to allow Mr Perna to use the shed. They were new and were of a similar kind to those in the van. Mr Perna was about to unload the items from the van into the shed. Mr Perna had put some at least of the kitchen appliances into the shed. If some of them were put there by another person, that person had told Mr Ward that he was there on Mr Perna’s behalf. I do not accept the submission by Mr Coates, counsel for Mr Perna, that these findings were not open. The kitchen appliances were stolen during September 2005. Mr Ward’s evidence about when Mr Perna visited the premises was vague. However, it was open to the Magistrate to find that Mr Perna visited the shed during September.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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