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, according to Mr Perry, the excavator was removed from Mr Hardie’s premises. In evidence Mr Hardie said that he did not know who had taken it, how it was removed or where it was. It was not put to Mr Hardie that this evidence was untrue.
Mr Perry’s response to the disappearance of his excavator was apparently to blame Mr Hardie. He decided that he would not let Mr Hardie have his utility back unless Mr Hardie returned the excavator or explained where it was.
Mr Perry said in evidence that “All I wanted to do was to keep it out of his possession until he gave me back the excavator, whether it was in my backyard or anywhere else”. Mr Perry said much the same thing to the Magistrate in answer to a question, at T 58.
Mr Perry telephoned Mr Hardie several times. I gather that this was in about January 2005. On one occasion it was more or less common ground that Mr Perry said to Mr Hardie that he was going to sell the utility and that Mr Hardie simply hung up on him. Mr Perry said he did this to get a reaction from Mr Hardie. I assume that he means a response to his demands for information about the excavator.
It is possible that Mr Hardie said in one of these telephone conversations that Mr Perry could do what he liked. Mr Hardie was refusing to discuss the matter with Mr Perry.
Mr Perry’s response to this was to winch Mr Hardie’s utility on to a trailer and then take the trailer to a friend’s property and leave the utility there. In my opinion, it is clear that his intention was to hide the utility from Mr Hardie. He was using the utility or his concealment of it to put pressure on Mr Hardie in relation to the excavator.
In early March 2005 or thereabouts, Mr Hardie returned from Port Pirie to Whyalla. Mr Hardie had been working in Port Pirie and lived in Whyalla. Mr Hardie went to Mr Perry’s premises and looked over the fence and saw the utility was not there. It was about then that Mr Hardie contacted the police.
When the police questioned Mr Perry on 13 March 2005 he made no secret of the fact that he had concealed the utility and intended to return it only when he got his excavator. It was only after being pressed by the police that Mr Perry told them where the utility was. It was then returned by the police to Mr Hardie.
The removal of the utility by Mr Perry was said to be the unlawful use of it for the purpose of the charge.
The trial before the Magistrate was a little disorganised. Mr Perry conducted his own defence. He was intent on pursuing what were in reality a number of irrelevant issues. Also, not surprisingly, he was unfamiliar with the manner in which witnesses should be questioned. Despite that, his evidence and contentions emerged clearly enough.
The facts as I have outlined them above were not really in issue, that is that Mr Perry agreed to store Mr Hardie’s utility at his property, and that when Mr Perry’s excavator went missing Mr Perry blamed Mr Hardie, telephoned him about it, threatened to dispose of the utility and then removed it to a place of hiding.
There are one or two other points of detail which emerged in the course of the trial and which I add to provide further context. Mr Hardie and Mr Perry had known each other for quite a long time and had been good friends. Mr Hardie worked on a tugboat at Port Pirie and spent a good deal of his time away from Whyalla. Although there was a dispute about this point, Mr Hardie explained why he asked Mr Perry to look after the utility. It is not necessary to go into the details.
When Mr Perry gave evidence, he freely agreed that he had taken Mr Hardie’s utility to a friend’s place and left it there. He described how he winched it on to a trailer and off the trailer. He was helped by his brother who also gave evidence.
The Magistrate approached the matter on the basis that Mr Perry did not have Mr Hardie’s permission to remove the utility. That finding was clearly right. Nothing said by Mr Hardie could reasonably have been understood by Mr Perry as giving him that permission.
The Magistrate rejected evidence and submissions by Mr Perry that he moved the utility to protect it from damage from people intruding on to his property or from people who might throw things over the fence. That suggestion was inconsistent with what Mr Perry did and said, nor did it fit the facts. If that had been his reason, he surely would have contacted Mrs Hardie and obtained the keys to the utility. She lived in Whyalla. The same comment applies to the suggestion that he had permission to move the utility.
From the Magistrate’s point of view, the case was relatively straightforward. The use of or interference with the motor vehicle was admitted. He found that Mr Perry did not have permission, and did not believe that he had permission. He rejected Mr Perry’s claim that he moved the vehicle to protect it from damage. That left as the only possibility a defence on the basis that Mr Perry believed that, as a matter of law, he was entitled to deal with the vehicle as he did in response to the disappearance of his excavator.
The Magistrate questioned Mr Perry quite closely on this point and on more than one occasion. This defence did not appear to be part of Mr Perry’s case at, least in terms of the arguments that he was advancing, but the Magistrate realised that the point might arise. His attempts to get Mr Perry to focus on this point were not entirely successful because there were other things that Mr Perry was more interested in talking about.
However, at one stage the Magistrate said:
QI know that is what you were going to do, but you can do that and at the same time think “What I’m doing is not strictly legal, but I am going to do it because, bugger him, that is what I am going to do” or you can think, “I am actually think I am legally entitled to do this”. Now, what I am asking you is whether you thought at the time that you had a legal right to do it and so far I have asked you that question about five times and so far - you didn’t turn your mind to it.
A. I did not have any opinion on that matter at all at that time, at all.
On various occasions, Mr Perry simply asserted that he was going to keep the utility until he got his excavator back. That was consistent with his statement to the police. To the extent that he offered an explanation for his conduct, I refer to what I have already said about claims that the Magistrate rejected. It was on that basis that the Magistrate rejected a possible defence based on a belief on Mr Perry’s part that he was legally entitled to act as he did.
The Magistrate was entitled to reject that defence. A defence of the kind in question must be based on a belief in a legal right or an asserted legal right to act as Mr Perry did. At no stage did he make such a claim. His attention was drawn to the point. The thrust of Mr Perry’s defence, once one puts aside the excuses that the Magistrate rejected, was simply that he was determined to put pressure on Mr Hardie to produce his excavator and saw the utility as a means of doing so.
I am prepared to accept that a defence along these lines was a relevant defence to the charge in all of circumstances. If the issue was raised on the evidence, it was for the prosecution to exclude beyond reasonable doubt the presence of a belief on Mr Perry’s part in a legal entitlement to act as he did, and I refer to the decision in Police v Mariner [2002] SASC 363; (2002) 222 LSJS 499. In the present case it is doubtful whether the suggested defence arose on the facts. But even if the issue was raised by the evidence, on the evidence before him it was open to the Magistrate to find, as he did, that it was established beyond reasonable doubt that Mr Perry did not act on the basis of a claim of a legal entitlement to do what he did.
The possibility of a defence along these lines was an issue properly considered by the Magistrate. It is not the subject of a ground of appeal. However, for the reasons given, the Magistrate’s decision in this respect was correct.
Another issue at trial that is not the subject of a ground of appeal is whether what Mr Perry did amounted to the use of the motor vehicle for the purposes of the statutory provision. That did not receive any real attention at trial. At the outset of his reasons the Magistrate said:
The authorities make it quite clear that “using” has a very wide connotation and what you did would come within either using or interfering with a motor vehicle.
I have considered a number of relevant decisions. For present purposes the notion of using a motor vehicle is a wide one. It covers all forms of use. However, I doubt whether what occurred did amount to the use of a motor vehicle. The manner in which Mr Perry dealt with the motor vehicle did not arise out of, and had no connection with, its character as a motor vehicle. He treated it simply as an object which he lifted up and carried away. He did so because of its potential value to Mr Hardie.
I am not confident that the facts here amount to the use of the motor vehicle within the meaning of the section. The offence is more likely to have been, and certainly would be more accurately described, as the offence of interfering with a motor vehicle. The complaint and the conviction can be amended under s 181 and s 182 of the Summary Procedure Act 1921 (SA). The amendment can be made to correct a defect of substance. The two-year time limit within which a prosecution must be instituted has not yet expired, and so the issue of amendment after the time for prosecuting has expired does not arise.
In the present circumstances, amending the complaint and the conviction does not give rise to any unfairness. The amendment could not possibly have affected in any way the manner in which the case was conducted. The same evidence remains relevant. There is no evidence that Mr Perry might have adduced had the complaint been expressed differently. Authority for the course that I consider to be appropriate can be found a Twining v Samuels [1971] 2 SASR 50 at 58-59 Walters J and in the decision of the single Judge and of the Full Court in Camilleri v Wilkinson (1983) 35 SASR 270, and in particular at 280-282 Bollen J; in the Full Court at 282 King CJ, at 283-294 Mohr J, cf at 291-293 Johnston J.
I turn now to the grounds of appeal. The grounds of appeal relate to the manner in which the trial was conducted.
I have read the whole transcript. The Magistrate intervened, as he was entitled and obliged to on occasions, to keep the case on track. I must say, with due respect to the Magistrate, that some of his interventions were somewhat stronger and more emphatic than I consider was necessary. However, I recognise that the transcript cannot fully capture the atmosphere of the trial.
Mr Perry’s first complaint is that the Magistrate failed to have regard to an affidavit that Mr Perry apparently submitted before the trial began. I have read the affidavit. For the purposes of the appeal, I received it as Exhibit A3. It adds nothing of substance to the admissible evidence that Mr Perry presented at trial. In any event, the Magistrate was right to inform Mr Perry that he could not act on the affidavit. The trial was to be conducted on evidence given before the Magistrate. It would have been helpful if the Magistrate had explained more fully his reasons for refusing to have regard to the affidavit, but the fact is that the Magistrate was right.
Mr Perry’s second complaint relates to a passage of evidence in the course of which the Magistrate interrupted Mr Perry’s cross-examination of Mr Hardie. Mr Perry was cross-examining Mr Hardie on his statement to the police. He did not do so in the correct manner. The Magistrate intervened to get things on track. Mr Perry suggests that the Magistrate led or helped Mr Hardie to his answer. I disagree. He did no more than ensure that the cross-examination was conducted in a proper manner. I reject this complaint.
Ground 3 complains that the Magistrate took over the questioning of Mr Perry’s brother when he gave evidence, and that the Magistrate harassed the witness. Mr Perry complains that he himself was harassed when giving evidence. The Magistrate did involve himself in the questioning of the witnesses more than was necessary, in my opinion. However, I have read the transcript carefully and there is no reason to think that the part that the Magistrate played meant that the trial was unfair. The same comment applies to the questioning of Mr Perry. By and large, the Magistrate’s questions were directed to material issues and were an attempt to get Mr Perry to focus on the right issues. It might have been preferable for the Magistrate to allow Mr Perry to give his evidence-in-chief substantially unaided, and then to question him. However, as I have already said, it is clear that the Magistrate’s questions to Mr Perry were directed towards eliciting from him relevant evidence. There can be no suggestion that Mr Perry was not able to present the relevant aspects of his case.
I have considered whether overall the interventions by the Magistrate were excessive and would have suggested to a reasonable observer that Mr Perry was not given a fair hearing. I accept Mr Perry’s complaint that the interventions were numerous and possibly were more than were necessary, but I am not persuaded that the interventions went to the extent that the trial does not appear to have been a fair trial and would not appear to have been a fair trial to an objective observer.
I adopt a comment made in the decision of Heenan J in Appleton v Pavlos [1998] WASCA 36 where in a similar situation he said that: “… although the interventions might have interrupted the flow of evidence, they did not stop the appellant from doing himself justice or telling his story”. The judge also made the point that the interventions were not such as to suggest prejudgment by the Magistrate, and the same applies here.
Nevertheless, for what it is worth, I add that it is important when a litigant represents himself that, as far as possible, the litigant be able to present his own case with guidance from the judicial officer as distinct from intervention in the presentation of that case.
I think it would have been better if the Magistrate had allowed Mr Perry more leeway than he did. Nevertheless at the end of the day the grounds of appeal are not made out and the appeal fails. I make the following orders:
1 That the complaint be amended to allege the offence of interfering with a motor vehicle without obtaining the consent of the owner thereof.
2 That the conviction be amended to record a conviction for the offence of interfering with a motor vehicle without first obtaining the consent of the owner thereof.
3 That the appeal be dismissed.