Police v W, BC - [2005] SASC 100

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 100
Youth 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…

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 [2005] SASC 100
Case: [2005] SASC 100
Decision Date: 23 March 2005

CaseChat Overview and Summary

The respondent, a minor, was acquitted of theft by a Magistrate in the Youth Court. The appellant sought to appeal the acquittal on the basis that the Magistrate erred in not considering the element of intention when determining whether the respondent had committed the offence of theft. The appeal was heard by the Supreme Court of South Australia. The key legal issue before the court was whether the Magistrate had properly considered the requirement that the prosecution prove the element of intention to permanently deprive the owner of property in order to secure a conviction for theft.

The court found that the Magistrate's reasons did not sufficiently address the element of intention. The court held that it was necessary for the Magistrate to consider whether the respondent had the intention to permanently deprive the owner of the darts at the time of the alleged offence. The court was not satisfied that the Magistrate had considered this element in her reasons, and therefore the appeal was allowed. The matter was remitted to the Youth Court for a further hearing to allow the Magistrate to properly consider the element of intention.

The court held that the Magistrate's failure to address the element of intention amounted to a significant error in the proceedings. The court emphasised the importance of properly considering all elements of an offence in criminal trials. The court found that the error was not minor and had the potential to affect the outcome of the case. Therefore, the appeal was allowed and the matter was remitted to the Youth Court for further hearing.

The final order of the court was that the appeal be allowed and the matter be remitted to the Youth Court for a further hearing to allow the Magistrate to properly consider the element of intention. The court did not make any further orders or observations.

Orders