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 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.
A prosecution appeal to this Court was allowed.[1] Anderson J considered that the magistrate’s reasons for decision showed that she had not considered one of the elements of the offence to be established by the prosecution, namely, whether the respondent had an intention to make a serious encroachment on the owner’s property rights. Instead, the magistrate had considered simply whether a serious encroachment had in fact occurred. However, Anderson J considered it inappropriate to substitute a verdict of guilty on the appeal. He ordered that the matter be remitted to the Youth Court in order that the matter could be further considered by the magistrate.
[1] Police v W, BC [2005] SASC 100.
The magistrate gave her decision on her reconsideration on 17 January 2006. The respondent was again acquitted. The reasons for that conclusion appear in the following paragraphs:
Whereas the observations made by the security officer could give rise to an inference that the defendant intended to seriously encroach on the shop owner’s proprietary rights, it is not the only conclusion that can be drawn from that evidence.
The defendant’s actions were equally consistent with an intention on his part to amuse himself temporarily with these items. In saying this, I have regard to the age of the defendant, the fact that he was in a large supermarket with friends, and it is not unreasonable for groups of boys to “hang out” and explore the stock in the shelves in this way. I do not want to be taken to be approving of this conduct, but in reality I have to acknowledge that this is what some young people do.
I found in my earlier judgment that there was no serious encroachment to the property. On the evidence, I am unable to exclude the possibility that the defendant intended to make a simple encroachment on the goods by unpacking them and moving them around the store, but had no intention to commit a serious encroachment as contemplated by the legislation. I find the prosecution has not established beyond reasonable doubt that the defendant held the requisite intent to commit the offence.
Section 134 of the Criminal Law Consolidation Act
Section 134 of the Criminal Law Consolidation Act 1935 (“CLCA”) provides (relevantly):
(1)     A person is guilty of theft if the person deals with property—
(a)     dishonestly; and
(b)     without the owner's consent; and
(c)     intending—
(i)     to deprive the owner permanently of the property; or
(ii)    to make a serious encroachment on the owner's proprietary rights.
Maximum penalty: Imprisonment for 10 years.
(2)A person intends to make a serious encroachment on an owner's proprietary rights if the person intends—
(a)     to treat the property as his or her own to dispose of regardless of the owner's rights; or
(b)     to deal with the property in a way that creates a substantial risk (of which the person is aware)—
(i)     that the owner will not get it back; or
(ii)that, when the owner gets it back, its value will be substantially impaired.
…
Approach to a Prosecution Appeal
The approach of this Court generally to appeals by the prosecution against the dismissal of a charge based on a finding of reasonable doubt is well established. This Court is reluctant to interfere with a verdict of acquittal based upon such a finding.[2] There are two considerations which cause this Court to adopt that approach. The first is that a finding of reasonable doubt often rests on the magistrate’s appraisal of the witnesses.[3] The second is that a prosecution appeal places the respondent in a situation of double jeopardy.[4] Where there is an error of law, the court may be more willing to interfere.[5]
[2]    Thorogood v Warren (1979) 20 SASR 156 at 159 per Zelling J; Police v Brown (1994) 72 A Crim R 527 at 535-6 per Olsson J.
[3]    Thorogood v Warren (1979) 20 SASR 156 at 159.
[4]    R v Wilkes (1948) 77 CLR 511 at 516-9 per Dixon J.
[5]    SA Police v Murphy (Unreported, Supreme Court of South Australia, Debelle J, 9 January 1996, Jdgmt No S5421).
The first consideration mentioned above is not so important in this case as the security officer was the only witness at the trial, and the magistrate regarded her as credible and reliable. The prosecution case turned on the inferences which could be drawn from her evidence as to the respondent’s intention in dealing with the darts.
Exploring the Stock
In the proceedings before the magistrate, and on appeal, the prosecution did not rely on s 134(1)(c)(i), ie, it did not contend that a finding could be made that the respondent intended to deprive K-Mart permanently of the darts. Rather, its case was that the respondent should be found to have intended to make a serious encroachment on K-Mart’s proprietary rights in one or other of the ways contemplated by s 134(2). As the appeal developed, the appellant relied in particular on s 134(2)(b), ie, that the respondent had intended to deal with the darts in a way which created a substantial risk (of which the respondent was aware) that K-Mart would not get them back or, that when K-Mart did get the darts back, their value would be substantially impaired.
The appellant did make an initial submission that the magistrate had not had regard, or sufficient regard, to the elaboration of the concept of intention to make a serious encroachment on the owner’s proprietary rights contained in s 134(2). That submission cannot be accepted. There are several indications in the magistrate’s original reasons, and in the reasons on the reconsideration, that the magistrate did have regard to s 134(2). Further, it would be remarkable if the magistrate had not had regard to s 134(2) especially in the light of the decision of Anderson J remitting the matter to her for reconsideration.
The magistrate seems to have found that the security officer’s evidence was consistent with one or other of two inferences, each of which was consistent with the respondent not intending to make a serious encroachment on K-Mart’s proprietary rights. They were that the appellant was “amusing” himself temporarily with the darts, or that he was “exploring” the stock on the shelves. It is convenient to deal with the second of those first.
The magistrate’s reference to “exploring” the stock may be understood as a reference to the activity of assessment, evaluation and perhaps, comparison in which consumers commonly engage before making a purchasing decision or as a reference to an action resulting from youthful curiosity about the darts.
With all respect to the magistrate, I do not think an inference to either of these effects was reasonably open. The respondent’s conduct went beyond the opening of the packaging so as to permit a closer inspection of the darts. Not only did the respondent remove and discard separately the outer packaging and the plastic case, he put the three darts in his pocket before moving to the DVD section. That conduct went well beyond an “exploration” of the darts in either of the senses just outlined. The putting of the loose darts in his pants pocket was, in particular, inconsistent with an innocent “exploration” of the darts. On appeal, the respondent’s counsel was unable to explain how the respondent’s conduct could be regarded as being consistent with an “exploration” of the darts.
Temporary Amusement
The second hypothesis which the magistrate thought had not been excluded as a reasonable possibility was that the respondent was simply amusing himself and his fellows by playing around with the darts. As I understand it, the magistrate reasoned that the separation of the darts from their packaging and casing was consistent with an innocent playing around by the respondent and his fellows. The magistrate seems to have reasoned that if this was what the respondent was doing, the prosecution had not proved beyond reasonable doubt that the respondent’s intention was to deal with the darts in a way which created a substantial risk (of which he was aware) that when K-Mart recovered control of the darts, their value would be substantially impaired.
In my opinion, on the facts accepted by the magistrate, this hypothesis is rather surprising. Many, perhaps most, magistrates hearing this trial might have concluded that the manner of dealing with the darts and their packaging did create a substantial risk that the darts would not be reunited with the packaging and the casing or that, even if they were, that there would be damage to the packaging or to the flights on the darts as a result of their having been compressed in the respondent’s pocket. Many, if not most, magistrates might have concluded that in those circumstances the respondent must have known of that risk and that he intended to make a serious encroachment on K-Mart’s proprietary rights in the way defined in s 134(2)(b)(ii). I agree with the observation by Anderson J in his reasons on the earlier appeal:
I would have thought on the evidence presented, that there was a good argument that the respondent’s actions as observed by Ms Reed did amount to proof beyond reasonable doubt of an intention to make a serious encroachment on the owner’s proprietary rights.[6]
[6] [2005] SASC 100 at [11].
The magistrate was apparently influenced by the fact that no darts were found on the appellant when he was searched by the police, even though he had been under continuous observation by the security officer from the time he was stopped until the time of search. (He had not however been under continuous observation in the period between putting the loose darts in his pocket and the time when he was stopped by store security). There was no evidence as to the circumstances in which the appellant had dispossessed himself of the darts whilst still in the store. Nor was there evidence that either the cardboard or the cellophane comprising the packaging had been damaged by the respondent’s removal of the darts and casing from the packaging. Nor was there evidence of the precise nature of the flights attached to the darts so that it could be concluded that the respondent must have been aware of the risk of damage to them from compression in his pocket. Evidence of these matters would have been very relevant to proof of the respondent’s awareness of the risk that the value of the darts would be substantially impaired when K-Mart got them back. This means, in my opinion, that it cannot be concluded that the hypothesis accepted by the magistrate was not open to her at all. In the language of s 134(2)(b)(ii), there was a possibility, albeit slight, that the respondent may not have been aware of a risk that the value of the darts would be substantially impaired when returned to K-Mart. That is, the evidence did not exclude wholly the possibility that the respondent might have thought that the darts would not be damaged and could be repackaged in their original packaging with no reduction in value.
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].
In my opinion, this was not such a rare and exceptional case. It was not a case in which the facts proved by the prosecution evidence were capable of explanation only by the disclosure of additional facts known only to the respondent. Further, the inference which the appellant submits that the magistrate should have drawn would arise only by reason of the fact that the respondent had not, by evidence, contradicted the prosecution case. As the passage quoted from Azzopardi makes clear, the drawing of such an inference is not appropriate. There was no error by the magistrate in not drawing the inference for which the appellant contended.
The Finding of Dishonesty

The magistrate said that she was satisfied that all elements of the offence of theft had been made out, other than proof that the respondent had the requisite intention. Thus, the magistrate was satisfied that the respondent was acting dishonestly. The appellant submitted that the finding that it had not been proved that the respondent intended to make a serious encroachment on K-Mart’s proprietary rights was inconsistent with the finding of dishonesty. Reference was made to s 131(1) of the CLCA which provides that a person’s conduct is dishonest, if the person acts dishonestly according to the standards of ordinary people and knows that he or she is so acting. This submission should not be accepted. In the first place, dishonesty and the existence of the requisite intention are separate elements of the offence of theft established by s 134. It is not to be supposed that proof of one element establishes as a matter of course proof of the other. In the second place persons might amuse themselves dishonestly with the property of another without ever forming the requisite intention for a s 134 offence. The reading of an entire book in a bookshop before returning it intact to the shelves may be one example. A mischievous switching of labels before returning both products to the shelves without the purpose to which s 143 refers may be another. In the present case a finding that the appellant knew that what he was doing was wrong was not equivalent to proof that he intended to make a serious encroachment on K-Mart’s proprietary rights in the defined sense.
A Simple Encroachment
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.