Police v W, BC
[2005] SASC 100
•23 March 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Youth Court Appeal: Criminal)
POLICE v W, BC
Judgment of The Honourable Justice Anderson
23 March 2005
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS AND PRACTICE OF COURT ON HEARING - REMISSION FOR REHEARING
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
Respondent, a minor, found not guilty of theft of darts - respondent was seen by a security officer with two other boys in K-Mart - security officer gave evidence that she saw the respondent take a packet of darts and put them down his pants - she also gave evidence that she saw the group generally unwrapping DVDs - when the boys were stopped they did not have any items on them - the security officer gave evidence she was able to identify the respondent in particular - he had been dressed differently from the other boys - appellant argues that the Magistrate misdirected herself in failing to consider the element of intention - Magistrate found that the facts of the case did not amount to a 'serious encroachment' on the owner's property rights - held: Magistrate's reasons not sufficiently clear in addressing the element of intention - appeal allowed - matter remitted to the Youth Court for further hearing.
Criminal Law Consolidation Act 1935 s134(1), referred to.
Elliott v Harris (No 2) (1976) 13 SASR 516, discussed.
Flemming v The Queen (1998) 197 CLR 250; R v Keyte (2000) 78 SASR 68; SA Police v Murphy (unreported, S5421, Debelle J, 9 January 1996), considered.
POLICE v W, BC
[2005] SASC 100Youth Court Appeal - Criminal
ANDERSON J This is an appeal from a decision of a Magistrate given on 12 January 2004 when the Magistrate found the defendant not guilty of the theft of some darts, the property of K-Mart.
The respondent was charged under s134(1) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”) and I set out the relevant sections:
“(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.”
Section 134 is part of Division 2 of Part 5 of the Act which creates the new statutory offence of theft. The term ‘larceny’ is not used in the new legislation. The Act, as amended, came into operation for offences committed on and after 5 July 2003.
The prosecution case before the Magistrate relied entirely on the evidence of a security officer, Ms Reed, who made certain observations when she was present in the K-Mart store on 4 December 2003. The facts are fairly straightforward. It is sufficient if I set out paragraphs two and three of the learned Magistrate’s reasons which clearly illustrate the relevant facts:
“2I shall not dwell long on the facts. The defendant was one of three youths who were seen by a security officer, Ms Reed, in the sporting aisle of the K-Mart store. He was seen by her to take a packet of darts and put them down the front of his pants. He moved to another aisle and removed the wrapper from those darts, put them back in his pants and then he went back to the sporting aisle, took off the outer container on the darts and put the darts into his pocket. She observed his two companions also take darts from the initial aisle, but the clearest view she had was of this defendant not the others. She later observed them in the DVD section of the store and they were taking wrappers off DVDs. She received information from another officer of K-Mart and as a result of that information and her own observations she waited at the exit for the boys to leave and stopped them when they did. When they were stopped there were no items found on their person. They denied having taken any darts or CDs and were taken into the office by Ms Reed to await the arrival of the police.
3 Ms Reed says that the defendant was dressed differently from the other two boys on this occasion in that, amongst other things, he had a yellow baseball cap. She identified him by his clothing, but also had a look at his face. She was unable to tell me what happened with the items that she had seen the boys take from the shelves, although she was aware that one set of darts had been found somewhere in the store and brought back to the office by another person. The evidence did not go so far as to establish whether the other items were found, were found damaged, were not found, or indeed anything else.”
As the Magistrate points out in her reasons, the only evidence against the defendant, as distinct from the group, is that one set of darts was placed by him down the front of his pants, as observed by Ms Reed.
Her Honour was not satisfied that the offence had been proved. She particularly found that there was no serious encroachment on the owner’s proprietary rights which of course meant that she did not find s134(1)(c)(ii) proved.
The basis of the Crown appeal is that her Honour misdirected herself in failing to consider the element of intention in relation to the crime. The learned Magistrate set out in summary form the details of the complaint in paragraph one of her reasons, and referred to the intention to make a serious encroachment on the owner’s proprietary rights. However, after that in her reasons, her Honour did not again refer to the element of intention, and it is not clear whether her Honour has disregarded this, or whether she has included this aspect in her summation of the facts.
In paragraph six of her reasons, after discussing the factual situation, her Honour says:
“Taking all those matters into account I am not satisfied that the offence is made out. The reason I so find is that I do not consider that the facts in this case amount to a serious encroachment on the owner’s proprietary rights. It may well be that the items were found, could be repackaged and sold perhaps at a discount. There is no suggestion that the DVDs were damaged or broken. In the circumstances I have to consider why parliament included the word ‘serious’ in this section rather than simply saying ‘to make an encroachment on the owner’s proprietary rights’. For that reason alone I find the defendant not guilty.”
It is not clear to me how her Honour has dealt with the aspect of intention in that passage of her reasons. It seems that her Honour was perhaps influenced by a consideration of simply whether there was a serious encroachment on the owner’s proprietary rights, without considering whether there was an intention to make a serious encroachment on the owner’s proprietary rights.
The elements of the offence created by s134 are, first, a dealing with property, secondly, dishonestly, thirdly, without the owner’s consent, and finally, intending to either deprive the owner permanently of the property, or to make a serious encroachment on the owner’s proprietary rights.
Her Honour has found that this was not a serious encroachment on the owner’s proprietary rights. However, that is not necessarily the same thing as deciding whether the respondent intended to make a serious encroachment on the owner’s proprietary rights. 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.
It may be that in the final paragraph of her reasons her Honour is including the element of intention generally without saying so, but this is not clear from the reasons.
Mr Lang, for the respondent, referred to a decision of the Full Court in Elliott v Harris (No 2) (1976) 13 SASR 516. Chief Justice Bray at 525 said:
“It is true that the learned Special Magistrate made no specific reference to the question of mens rea. That is unfortunate. It is much to be desired that courts of summary jurisdiction trying charges of crime, particularly a serious crime like this one, should make specific findings about each of the elements of the crime. But, after all, the rule is that a court of summary jurisdiction is presumed on appeal to have found as a fact everything necessary to support its conclusions, even though such finding is not explicitly stated, provided there is evidence upon which such a finding can be satisfactorily based and that such facts are not in conflict with any reasons expressly stated ...”
I am inclined to think that that passage is probably watered down by the effect of the pronouncements of both the High Court and the Full Court relating to the need to give sufficient reasons to enable an appeal court to ascertain the process of reasoning of the trial judge – see Flemming v The Queen (1998) 197 CLR 250, R v Keyte (2000) 78 SASR 68. In this matter the reasons of the learned Magistrate are not sufficiently transparent to illustrate how her Honour dealt with the element of intention.
Mr Lang also referred to an unreported decision of Debelle J in SA Police v Murphy (S5421, 9 January 1996) in relation to the aspect of the reluctance of appellant courts to interfere with a verdict of acquittal which is based upon a reasonable doubt. This is an appeal which involves a question of law, namely, whether one element of an offence has been considered, and therefore a court of appeal would be more likely to interfere with a verdict of acquittal.
As I have indicated, it is my view that the reasons of the learned Magistrate are not sufficiently clear to enable this court to ascertain how her Honour dealt with each of the elements which the prosecution had to prove.
In the circumstances, it is my view that this matter should be sent back to the Magistrate with a direction that on the facts as she found them, her Honour is to separately consider each of the elements of the offence as I have set out earlier. In particular, her Honour has to make a finding as to whether, on the facts which she found, the prosecution had proved that there was an intention by the respondent to make a serious encroachment on the owner’s proprietary rights. That is a question aside from whether, in the final analysis, it was a serious encroachment.
On the face of it, the other elements of the offence would seem to be made out. It seems clear that the respondent was dealing with the property of K-Mart dishonestly, and without the consent of K-Mart.
In my view, it is not appropriate to substitute a verdict of guilty on a rehearing of the matter, but that the matter should be remitted to the Youth Court to be dealt with according to law. I therefore direct the learned Magistrate to consider the matters raised in these reasons.
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