Police v W, BC - [2006] SASC 105

SUPREME COURT OF SOUTH AUSTRALIA
(Youth Court Appeal: Criminal)
POLICE v W, BC
Judgment of The Honourable Justice White
12 April 2006
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT
Crown appeal against acquittal - respondent acquitted of one count of theft - s 134 of the Criminal Law Consolidation Act 1935 - magistrate satisfied that all physical elements of offence of theft made out - magistrate not satisfied that accused intended to make a "serious encroachment" on the proprietary rights of the owner at relevant time - s 134(2) - whether magistrate should have drawn adverse inference as to respondent's intention in circumstance where respondent did not give evidence - whether it was open to magistrate in all the circumstances to find that respondent did not have requisite intention at relevant time - magistrate's conclusion not so improbable that it should not be upheld - appeal dismissed.
Criminal Law Consolidation Act 1935 s 131, s 134, referred to.
Thorogood v Warren (1979) 20 SASR 156; Police v Brown (1994) 72 A Crim R 527; R v Wilkes (1948) 77 CLR 511; SA Police v Murphy (Unreported, Supreme Court of South Australia, Debelle J, 9 January 1996, Jdgmt No S5421); Azzopardi v The Queen (2001) 205 CLR 50; RPS v The Queen (2000) 199 CLR 620, applied.
Police v W, BC [2005] SASC 100; Weissensteiner v The Queen (1993) 178 CLR 217, considered.

POLICE v W, BC
[2006] SASC 105
Youth Court Appeal

WHITE J: This is a prosecution appeal from a decision of a magistrate sitting in the Youth Court at Port Adelaide.
The magistrate acquitted the respondent of a charge of theft. It was alleged that he had taken four sets of darts and three DVDs to the value of about $154.41, the property of K-Mart, dishonestly, without consent and intending to deprive K-Mart permanently of the property or to make a serious encroachment on its proprietary rights, contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (“CLCA”). The focus of the prosecution evidence at trial, and of the decision of the magistrate, was on one set of darts.
Background Circumstances
This is a matter of some history. The respondent is now aged 16.
On 4 December 2003, when aged 14, the respondent was one of three youths who was observed by a security officer in an aisle in the Sporting Goods section of the K-Mart store at Port Adelaide. The security officer observed the respondent take a packet of darts from a display shelf and put them down the front of his pants. He then moved to an adjacent aisle. There he removed the packaging (comprising a cardboard back and a clear cellophane front) from the darts. He put the packaging on a shelf in the aisle containing fishing goods. Once the packaging was removed, the three darts were contained in a black plastic case which had been held, by the packaging, in the…

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 Police v W, BC

Details

AGLC: Police v W, BC [2006] SASC 105
Case: [2006] SASC 105
Decision Date: 12 April 2006

CaseChat Overview and Summary

The case before the court involves a Crown appeal against the acquittal of a respondent who was accused of theft under section 134 of the Criminal Law Consolidation Act 1935. The respondent was acquitted of one count of theft related to taking four sets of darts and three DVDs from K-Mart, valued at approximately $154.41. The prosecution argued that the respondent had taken the items dishonestly, without consent, and with the intention to deprive K-Mart permanently of the property or to make a serious encroachment on its proprietary rights. The magistrate acquitted the respondent, finding that while all physical elements of the offence of theft were made out, there was insufficient evidence to conclude that the respondent intended to make a serious encroachment on the proprietary rights of the owner. The Crown appealed against the acquittal, arguing that the magistrate should have drawn an adverse inference regarding the respondent's intention due to his failure to give evidence.

The legal issues before the court were whether the magistrate should have drawn an adverse inference regarding the respondent's intention because he did not give evidence, and whether it was open to the magistrate to find that the respondent did not have the requisite intention at the relevant time. The Crown relied on the High Court decisions in Weissensteiner v The Queen and Azzopardi v The Queen to support its argument that an adverse inference should have been drawn. However, the court noted that the High Court has consistently held that an accused is not required to contradict or explain evidence already given by witnesses, and that a comment on the accused's failure to provide evidence may only be made in rare and exceptional circumstances where the evidence is capable of explanation by disclosure of additional facts known only to the accused.

The court found that the magistrate's conclusion that the respondent did not have the requisite intention at the relevant time was not so improbable that it should not be upheld. The magistrate's reference to the possibility of a "simple encroachment" was more naturally understood as a means of explaining why the hypothesis being considered fell short of an intention by the respondent to make a serious encroachment on K-Mart's proprietary rights. The court held that the magistrate's conclusion was not so improbable as to warrant overturning the acquittal. Consequently, the appeal was dismissed.

The court's final order was that the appeal be dismissed, and the acquittal of the respondent on the charge of theft be upheld. The court's decision reinforces the principle that an accused is not required to contradict or explain evidence already given by witnesses, and that adverse inferences should only be drawn in rare and exceptional circumstances. The court's reasoning highlights the importance of considering the specific facts and circumstances of each case when determining whether an adverse inference should be drawn regarding an accused's intention.

Orders

Orders of the court

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Background

Background to the litigation

The magistrate acquitted the respondent of a charge of theft. It was alleged that he had taken four sets of darts and three DVDs to the value of about $154.41, the property of K-Mart, dishonestly, without consent and intending to deprive K-Mart permanently of the property or to make a serious encroachment on its proprietary rights, contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (“CLCA”). The focus of the prosecution evidence at trial, and of the decision of the magistrate, was on one set of darts.Background Circumstances This is a matter of some history. The respondent is now aged 16. On 4 December 2003, when aged 14, the respondent was one of three youths who was observed by a security officer in an aisle in the Sporting Goods section of the K-Mart store at Port Adelaide. The security officer observed the respondent take a packet of darts from a display shelf and put them down the front of his pants. He then moved to an adjacent aisle. There he removed the packaging (comprising a cardboard back and a clear cellophane front) from the darts. He put the packaging on a shelf in the aisle containing fishing goods. Once the packaging was removed, the three darts were contained in a black plastic case which had been held, by the packaging, in the open position. The security officer observed the respondent put the darts and the case back into his pants before moving to another aisle. He then removed the three darts from the black plastic case and put the case on a shelf in amongst other sporting goods. The darts, which were now loose, were put into his pocket. The security officer also observed the respondent’s two companions taking darts but, because of limitations on her vision, was unable to give evidence of what was done with those darts. Later, the security officer observed the respondent and his companions in the DVD section. She observed them taking wrappers from DVDs and trying to open at least one. She observed one of the youths conceal a DVD in his clothing. She was unable to identify the respondent as that youth. The security officer then made arrangements for the three youths to be stopped as they left the store. When they were stopped, they denied having any darts or DVDs in their possession. No darts or DVDs were found on them when they were searched. Each of the packaging and the black plastic case which the security officer had seen removed by the respondent was later recovered from the places at which they had been left. The security officer also said that one set of darts had been recovered by a store employee, but the evidence did not identify where in the store these darts had been found. The security officer’s evidence did not establish how many sets of darts or DVDs had been removed from their respective display areas nor whether there had in fact been any damage caused to the packaging or to the darts.The Proceedings So Far The hearing of the charge against the respondent took place on 12 January 2005. The security officer was the only witness at the trial. The magistrate found her to be a credible and reliable witness. It is evident that the magistrate’s findings of fact were based on the evidence of the security officer. In an ex tempore decision the magistrate acquitted the respondent.

Evidence

Evidence Before The Court

I repeat that the magistrate’s conclusion can reasonably be regarded as somewhat surprising. However, bearing in mind the nature of an appeal of this kind, I am not satisfied that the appellant has shown that the magistrate’s conclusion is so improbable that it should not be upheld.[7][7] Cf SA Police v Murphy (Unreported, Supreme Court of South Australia, Debelle J, 9 January 1996, Jdgmt No S5421 at p 5).The Absence of Evidence from the Respondent The appellant submitted that the magistrate should have drawn an inference adverse to the respondent because the intentions consistent with the hypothesis of innocence being considered by the magistrate (temporary amusement and exploration of the stock) were matters within the respondent’s own knowledge, and he had chosen not to give evidence. Reliance was placed on the decisions of the High Court in Weissensteiner v The Queen[8] and Azzopardi v The Queen.[9][8] (1993) 178 CLR 217.[9] (2001) 205 CLR 50. This submission was not developed in any detail. It may be observed that in all cases where intention is an issue, it could be said that the state of mind of the accused is a matter within his or her own knowledge and that inferences as to that state of mind have to be drawn from the accused’s contemporaneous words or conduct. If the appellant’s submission be correct, it would seem to follow that in most cases where intention is an issue, an inference adverse to the accused could be drawn from his or her failure to give evidence. Such a result is not readily to be supposed to be consistent with the law as stated by the High Court in RPS v The Queen[10] and in Azzopardi v The Queen.[11]In the latter case, the majority said:There may be cases involving circumstances such that the reasoning in Weissensteiner will justify some comment. However, that will be so only if there is a basis for concluding that, if there are additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw, and they are facts which (if they exist) would be peculiarly within the knowledge of the accused, that a comment on the accused’s failure to provide evidence of those facts may be made. The facts which it is suggested could have been, but were not, revealed by evidence from the accused must be additional to those already given in evidence by the witnesses who were called. The fact that the accused could have contradicted evidence already given will not suffice. Mere contradiction would not be evidence of any additional fact. In an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of evidence at trial. These matters must be assessed by the jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence. [Emphasis in the original][12][10] (2000) 199 CLR 620.[11] (2001) 205 CLR 50.[12] Ibid at 74 [64]. Later, the majority in Azzopardi said:It is to be emphasised that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional. They will occur only if the evidence is capable of explanation by disclosure of additional facts known only to the accused. A comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case.[13][13] Ibid at 75 [68].

Decision

Reasons for decision

In the third paragraph of her reasons quoted above, the magistrate referred to the possibility that the respondent had intended only a “simple encroachment” on the darts. This led to a submission by the appellant that the magistrate had misdirected herself, ie, by enquiring whether the appellant had intended an encroachment which was simple or serious, rather than considering whether she was satisfied that the respondent had intended to make a serious encroachment. I do not accept this submission. The magistrate’s use of the expression “simple encroachment” is more naturally to be understood as a means of explaining why the hypothesis being considered by her fell short of an intention by the respondent to make a serious encroachment on K-Mart’s proprietary rights.Conclusion For these reasons, my opinion is that the appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

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