POLICE v HALL No. SCGRG-98-802 Judgment No. S6779

[1998] SASC 6779

POLICE v HALL

Magistrates Appeal
Debelle J (ex tempore)

This is an appeal against the dismissal of a complaint. The respondent had been charged with larceny contrary to s.131 of the Criminal Law Consolidation Act, 1935.  It was alleged that on 18 November 1997, at the K-Mart store at Ingle Farm, she and her son had stolen goods to the value of $128.85, the property of K-Mart Australia Pty Ltd (“K-Mart”).  The goods were a fishing reel, a compact disc, and one video pack which comprised a package of three blank video tapes. 

The complaint against the respondent was heard separately from that against her son.  It came on for hearing in the Magistrates Court at Elizabeth on 28 May 1998.  The respondent pleaded not guilty.  Evidence was taken. At the close of the prosecution case, counsel for the respondent submitted that there was no case to answer.  The magistrate upheld the submission and dismissed the complaint.  The complainant appeals from that decision. 

The prosecution case consisted of two witnesses.  The first was Ms Hunter, a security officer employed by K-Mart.   She had seen the respondent and her son in the store.  Her attention had been attracted by the sound of something ripping.  Her evidence was that she saw the respondent's son tearing open a packet of scissors.  She continued to watch them.  She saw that a fishing reel wrapped in a blister pack was in the shopping trolley being pushed by the respondent's son.  Shortly after, she saw him cut the blister pack with the scissors.  He removed the reel.  He later hid the blister pack behind some other goods. 

The respondent and her son ultimately proceeded to the check-out.  Ms Hunter continued to watch them.  She saw that the respondent was wearing a reasonably large leather bag over her shoulder.  She saw the respondent's son pay for some goods.  The respondent and her son then left the store.  Ms Hunter followed them, stopped them and questioned them.  After a short time, the respondent said “This is what you want. Here is the reel” and removed it from her bag.  Ms Hunter asked the respondent and her son to return with her to an office in the store.  While doing so, she heard the respondent replace the compact disc on a display rack. 

In the office, Ms Hunter asked the respondent to place all unpaid items on a desk.  The respondent took from her bag the pack of three video tapes and placed them on the desk.  Ms Hunter then had a brief conversation with the respondent, which she said was in these terms: 

“I said:           “Do you have any other goods not paid for?”

She said:        “No”.

I said:           “Did you have enough money to pay for the goods?”

She said:        “If I used my card, yes”. 

I said:   “Why didn't you produce the items at checkout?”

She said:        “He didn't want to pay for them”. 

I said:   “You're his mother.  Do you think that's acceptable?”

She said:       “No”. 

I said:   “Then why did you put the goods in your bag?”

She said:       “Because he asked me to”. 

I said:   “Why did you leave the store without first paying for the goods?”

She said:       “Because he didn't want to pay for them and he wanted them,

and he didn't have enough money”.” 

That was the end of the interview.

The security officer had called the police. They arrived soon after that conversation. The other witness was Police Constable Kemp. He, too, had a conversation with the respondent at the K-Mart store. The relevant parts of the conversation were as follows: 

“I said:           “I'm investigating an allegation that you removed some

items from the store without paying for them.  Is that correct?”

She said:       “Well, I didn't really take them, but I was a party to it. 

I let him put them in my bag”. 

I said:   “What was put into your bag?”

She said:       “A video pack, CD and a fishing reel.  I had enough money

to pay for them.  I paid for what I wanted myself”. 

I said:   “I'm going to ask you some more questions.  You do not have

to answer these questions, but what you say will be written

down and may be used as evidence.  Do you understand that?”

She said:       “Yes”...

I said:   “Did Michael select any items from the shelves?”

She said:       “The video and fishing reel and CD.  He must've put it there,

but I didn't see him pick it up”. 

I said:   “Where did these items end up?”

She said:       “He put them in my bag”. 

I said:   “Were those items presented for payment when you left

the store?”

She said:       “No”. 

I said:   “Did Michael say anything to you when he put the items

in your bag?”

She said:       “I can't remember exactly”. 

I said:   “What do you call what you have done today?”

She said:       “Lots of things, really - shopstealing; stealing”. 

I said:   “Do you know the value of those items?”

She said:       “About $80 to $90.  I'm not sure.”

I said:   “Who owns those items?”

She said:       “K-Mart.”

I said:   “Did you have any permission to take the items

without first paying for them?”

She said:       “No”. 

I said:   “Do you have any claim or right to the items?”

She said:       “No”.”

That was the case for the prosecution. 

When the prosecution case had closed, Ms O'Connor, counsel for the respondent, submitted there was no case to answer.  Her grounds were that there had been no proof that the respondent and her son had not paid for the articles which were alleged to have been stolen.  She pointed to the absence of any proof of any sales docket, reinforcing her submission by submitting that Ms Hunter had an imperfect view of the checkout and did not see whether payment had been made for all of the goods.  The magistrate upheld the submission.  He did not give any reasons. 

The test to be applied when determining whether there is a case to answer is stated in the R v Bilick (1984) 36 SASR 321 at 337. It was later approved and spelled out in more detail by King CJ in Questions of Law Reserved on Acquittal (No.2 of 1993) (1993) 61 SASR 1 at 4 to 5. In R v Bilick, King CJ said at 337:

“The same test is to be applied to deciding a submission of no case to answer in a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different.   The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt.  Where there is direct evidence of the actus reus and that evidence is capable of supporting an inference of mens rea, there is a case to answer except in the extreme case, as perhaps of testimony which is manifestly self-contradictory or the product of a disorderly mind, envisaged by the Privy Council, in which the direct "evidence" is so incredible as to amount to no evidence.  Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?”

Later, in Questions of Law Reserved on Acquittal (No2 of 1993) (supra), the Chief Justice restated the principles in the following terms.

“If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be.  If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer.  There is no case to answer only if the evidence is not capable in law of supporting a conviction.   In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.”

Those were the principles the magistrate had to apply when deciding whether the submission of no case to answer should be upheld.  It was not his function at that stage to choose between the inferences which were reasonably open on the evidence.  That was a matter for consideration after all the evidence had been led. 

As was pointed out in Questions of Law Reserved on Acquittal (No.2 of 1993) (supra) at 5, the magistrate was not then concerned to decide whether any possible hypothesis consistent with innocence was reasonably open on the evidence.  He was concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence. 

In this case there was a good deal of evidence from which the conclusion could be drawn that the respondent and her son had not paid for the goods.  There were two conversations in which the respondent had admitted that she had not paid for them.  In addition, the respondent had described her conduct as stealing.  Those admissions, in line with the respondent's own description of her conduct, was compelling evidence in support of the prosecution case. 

Furthermore, the evidence which had been led demonstrated that the elements required for the crime of larceny were all present.  The respondent had admitted that she had no right to the goods.  She had admitted taking them without payment and doing so without the consent of K-Mart. It was also apparent from the evidence that she had done so without the consent of K-Mart.  In addition, her conduct in leaving the store and walking towards her car in the car park was plainly a fact from which it would be reasonable to draw the inference that she had the intention permanently to deprive K-Mart of the goods.  In short, there was ample evidence from which asportation of the goods could be inferred. 

Shortly stated, the prosecution case was a very strong one and there was nothing at that stage which justified the decision that there was no case to answer.  In the absence of reasons, it is not possible to say whether the magistrate applied an incorrect test or whether he failed to have sufficient regard to the evidence which was sufficient to meet the correct test.  In the absence of those reasons, I thought it desirable to restate the relevant principles.  On any view of the matter, it is clear that he has erred in deciding that there was no case to answer. 

Ms O’Connor submitted that the terms of the conversations with Ms Hunter and Constable Kemp were disputed.  The transcript does not clearly indicate that they were. But, even if she is correct, that does not alter the position.  As was noted in the passage quoted from R v Bilick and Starke (supra), the question to be answered is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt.  As mentioned above, such evidence plainly existed.

In the course of her submissions, Ms O'Connor also suggested that an inconsistency in the evidence of Ms Hunter as to who had paid for what goods was a significant blow to the prosecution case.  I cannot share that view, particularly given the compelling evidence of the admissions made by the respondent in two separate conversations.   The inconsistency in that evidence might go to the question of who paid for what goods but, on any view, the goods paid for were not the subject of the charge. 

Ms O'Connor suggested that the respondent had, in her conversations, equivocated on the question whether the goods had been stolen. When both conversations are viewed as a whole, it is apparent that she has not. 

For these reasons, the appeal will be allowed.  The charge against the respondent's son is awaiting the outcome of this appeal.  It is appropriate, therefore, that the matter be remitted to the magistrate to hear and determine according to law. 

The orders will, therefore, be:

1. Appeal allowed.

1. The order dismissing the complaint is set aside.

1. The complaint is remitted to the magistrate for hearing and determination according to law. 

1. The respondent shall pay the appellant's costs which I fix at $150.