Perry v Police - [2006] SASC 136

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
PERRY v POLICE
[2006] SASC 136
Judgment of The Honourable Chief Justice Doyle (ex tempore)
3 May 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - CONDUCT OF TRIAL JUDGE
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - IGNORANCE AND MISTAKE OF LAW
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AMENDMENT - IMMATERIALITY OR ABSENCE OF PREJUDICE
Appellant convicted of using a motor vehicle without first obtaining the consent of the owner contrary to s86A of the Criminal Law Consolidation Act 1935 (SA) - appeal against conviction - appellant had left an excavator with the owner of the vehicle for safekeeping - appellant had agreed to store vehicle at his premises - appellant's excavator subsequently disappeared - appellant refused to return vehicle to owner unless excavator returned or explanation for its disappearance given - appellant loaded vehicle onto a trailer and moved it to another location - whether appellant believed that he had a legal right to deal with the vehicle as he did - no such belief asserted by appellant - whether moving vehicle amounted to use of vehicle - whether moving vehicle amounted to interference with vehicle - whether amendment of complaint and conviction gives rise to unfairness - whether Magistrate should have had regard to affidavit of appellant - whether questioning by Magistrate rendered trial unfair - complaint and conviction amended to the offence of interfering with a motor vehicle without first obtaining the consent of the owner - appeal dismissed.
Criminal Law consolidation Act 1935 (SA) s 86A; Summary Procedure Act 1921 (SA) s 181, s 182, referred to.
Police v Mariner (2002) 222 LSJS 499; Twining v Samuels [1971] 2 SASR 50; Camilleri v Wilkinson (1982) 35 SASR 270; Appleton v Pavlos [1998] WASCA 36, considered.

PERRY v POLICE
[2006] SASC 136
Magistrates Appeal: Criminal

DOYLE CJ (ex tempore): Mr Perry was charged on complaint with the offence of using a motor vehicle without first obtaining the consent of Mr Hardie, the owner, contrary to s86A of the Criminal Law Consolidation Act1935 (SA).
The offence was alleged to have occurred between 9 January 2005 and 6 March 2005. Mr Perry pleaded not guilty and conducted his own defence. After a trial the Magistrate found him guilty. Mr Perry appeals against the conviction.
The circumstances of the case are a little unusual. Mr Perry and Mr Hardie were friends. Mr Perry became bankrupt. The evidence before the Magistrate was that Mr Hardie agreed to store an excavator belonging to Mr Perry at premises under Mr Hardie’s control. Apparently this was done to conceal the excavator from Mr Perry’s trustee in bankruptcy.
At some stage Mr Hardie asked Mr Perry if Mr Hardie could store his utility motor vehicle at Mr Perry’s premises. Mr Perry agreed. Some time later,…

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 Perry v Police

Details

AGLC: Perry v Police [2006] SASC 136
Case: [2006] SASC 136
Decision Date: 3 May 2006

CaseChat Overview and Summary

The case of Perry v Police involves the appellant, who was convicted of using a motor vehicle without first obtaining the consent of the owner, contrary to section 86A of the Criminal Law Consolidation Act 1935 (SA). The appellant had left an excavator with the owner of the vehicle for safekeeping and agreed to store the vehicle at his premises. However, the excavator subsequently disappeared, and the appellant refused to return the vehicle to the owner unless the excavator was returned or an explanation for its disappearance was provided. The appellant then loaded the vehicle onto a trailer and moved it to another location. The appellant appealed against the conviction, raising several grounds, including whether he believed he had a legal right to deal with the vehicle as he did, whether moving the vehicle amounted to using it, and whether the amendment of the complaint and conviction gave rise to unfairness.

The court was required to determine whether the appellant's actions amounted to the use of the vehicle and whether moving the vehicle constituted interference with it. Additionally, the court had to consider whether the amendment of the complaint and conviction gave rise to unfairness, whether the Magistrate should have had regard to the appellant's affidavit, and whether the questioning by the Magistrate rendered the trial unfair. The appellant argued that he did not believe he had a legal right to deal with the vehicle as he did and that the amendment of the complaint and conviction gave rise to unfairness. The court found that the appellant's actions amounted to the use of the vehicle and that moving the vehicle constituted interference with it. The court also found that the amendment of the complaint and conviction did not give rise to unfairness and that the Magistrate was not required to have regard to the appellant's affidavit. Furthermore, the court found that the questioning by the Magistrate did not render the trial unfair.

The court dismissed the appeal, holding that the appellant's actions amounted to the use of the vehicle and that moving the vehicle constituted interference with it. The court found that the amendment of the complaint and conviction did not give rise to unfairness and that the Magistrate was not required to have regard to the appellant's affidavit. The court also found that the questioning by the Magistrate did not render the trial unfair. The court held that the conviction was properly obtained and that the appeal was without merit. The final orders of the court were that the appeal be dismissed, and the conviction be upheld.

Orders