R v BASLIS - [2011] SASCFC 160

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BASLIS
[2011] SASCFC 160
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Anderson and The Honourable Justice Stanley)
21 December 2011
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - PROCEDURE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - CLAIM OF RIGHT
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF DEFENCE CASE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeal against conviction – appellant tried for two counts of theft – prosecution alleged that the appellant played a role in a scheme designed to deal with stolen cars by modifying them – appellant acquitted on first count and convicted on second count – whether trial judge adequately directed jury on elements of theft – whether judge required to give directions in terms of a claim of right as provided in s 131(5) and (6) Criminal Law Consolidation Act 1935 (SA) – whether judge required to direct jury that before returning a verdict of guilty they must reject the appellant’s version of events beyond reasonable doubt – whether judge presented defence case adequately to the jury – whether judge required to direct jury that a finding of not guilty on one count could be considered in evaluating the other count – whether verdict unreasonable or could not be supported having regard to the evidence.
Held: Vanstone J (Anderson and Stanley JJ agreeing) appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 134, s 131(1), s 131(5), s 131(6), referred to.
R v Miller (2008) 103 SASR 174, applied.
R v Daniel [2010] SASCFC 62; R v Calides (1983) 34 SASR 355, distinguished.
R v Phan & Ton (2010) 108 SASR 260, discussed.

R v BASLIS
[2011] SASCFC 160
Court of Criminal Appeal: Vanstone, Anderson and Stanley JJ

VANSTONE J: The appellant stood trial in the District Court before a judge and jury upon an information charging him with two counts of theft contrary to s 134 of the Criminal Law Consolidation Act 1935 (the Act). Each charge alleged theft of a motor vehicle which had been taken from a vehicle retailer in Adelaide in the period September to November 2008. The prosecution alleged that the appellant played a role in a scheme designed to deal with cars stolen from that business and to modify them for his own or for someone else’s use. He was found guilty only on the second count.
He now appeals, with permission, against his conviction arguing that the directions to the jury going to the offence of theft were flawed; that they were not adequately linked to the evidence; that there were defects in other…

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 R v BASLIS

Details

AGLC: R v Baslis [2011] SASCFC 160
Case: [2011] SASCFC 160
Decision Date: 21 December 2011

CaseChat Overview and Summary

The appeal concerned a conviction for theft, where the appellant, R, was tried on two counts. The prosecution alleged the appellant was involved in a scheme to deal with stolen motor vehicles by modifying them. The appellant was acquitted on the first count but convicted on the second. The appeal was heard by Vanstone, Anderson, and Stanley JJ of the Supreme Court of South Australia.

The central legal issues before the court were whether the trial judge had adequately directed the jury on the essential elements of theft. Specifically, the court considered whether the judge was required to provide directions regarding a claim of right, as outlined in sections 131(5) and (6) of the *Criminal Law Consolidation Act 1935* (SA). Further issues included whether the judge should have directed the jury that they must reject the appellant's version of events beyond reasonable doubt before returning a guilty verdict, whether the defence case was presented adequately to the jury, and whether the judge should have directed the jury that an acquittal on one count could be considered when evaluating the other. Finally, the court had to determine if the verdict on the second count was unreasonable or unsupported by the evidence.

The court, in dismissing the appeal, found that none of the grounds raised by the appellant had been made good. The reasoning of Vanstone J, with which Anderson and Stanley JJ agreed, indicated no misgivings about the verdict on the second count. The appellant's explanation for his involvement in registering the first stolen vehicle was that he acted at the prompting of a vehicle inspector because the actual recipient of the vehicle lacked a driver's licence. Regarding the second stolen vehicle, found at his home, the appellant claimed he had taken possession of it from an unknown individual to install accessories, and denied placing a number plate, which had previously belonged to him, onto the vehicle. The defence suggested that someone else, possibly the individual known as "George," might have affixed the number plate. The appellate court was satisfied with the jury's verdict on the second count, finding it neither unreasonable nor unsupported by the evidence presented.

Orders

Orders of the court

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Background

Background to the litigation

He now appeals, with permission, against his conviction arguing that the directions to the jury going to the offence of theft were flawed; that they were not adequately linked to the evidence; that there were defects in other directions concerned with proof of the charge; that the judge failed to put the defence case adequately and that the verdict is unreasonable.Background It was proved before the jury that both the Mitsubishi Outlander motor vehicle the subject of count 1 (car 1) and the Mitsubishi Express van (car 2) the subject of count 2 were stolen from Agostino Mitsubishi Motors in Adelaide between 7 September and 11 November 2008. The first charge was based on the appellant’s admitted conduct in playing a role in registering car 1 in the name of Giuseppe Panzarino. He and Panzarino attended for that purpose with the vehicle at the Regency Park premises of the Department of Transport. The appellant’s name and driver’s licence were used to register the vehicle. The appellant’s explanation for that conduct, given both in interview with police and in evidence, was that he inserted his name on the relevant documents at the prompting of the vehicle inspector because Panzarino was not the holder of a driver’s licence. He told police that he did not really know Panzarino, but that he had met him at a friend’s house (later described as the Liberty Workshop on Henley Beach Road). Panzarino had needed a ride to the Regency Park premises “to get the car complianced”. He was happy to oblige. Because Panzarino did not have a driver’s licence the inspector said that the transaction could not be processed. The inspector suggested that if he, the appellant, had a licence he could sign the documents and the transaction could be completed. That is what he did. He said he had had no contact with Panzarino since. The basis of the case against the appellant on the second count was that car 2 was located inside a large shed in the back yard of his home, among other vehicles. A number-plate had been affixed to the rear of the vehicle. It was a number-plate which had come into the appellant’s possession several years previously. He said when interviewed that he had taken possession of car 2 from a person whose name he did not know, so that he could “fix some racks” to it and install a reversing camera. He said he had met that man through the Liberty Workshop. In evidence he said that man’s name was “George”. He said he had only had possession of car 2 for a couple of days prior to police attending at his home. When asked in interview why car 2 bore a registration plate from a car formerly registered to him, the appellant said he did not know and that he had not placed the registration plate on car 2. He explained in evidence that when he had, some time before, removed number-plates from a Statesman sedan he had purchased, he had placed them in the tray of his Nissan utility. He could not recall what happened to them after that. He said the utility was used by persons at the Liberty Workshop as a runabout. The inference promoted by the defence was that someone else, possibly George, must have taken the number-plates and, for their own reasons, fixed one of them to car 2.Arguments on the appeal

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Having assessed the matter as a whole, I have no misgivings about the verdict on count 2.Conclusion None of the appeal grounds has been made good. I would dismiss the appeal. ANDERSON J: I agree that the appeal should be dismissed for the reasons given by Vanstone J. STANLEY J: I would dismiss the appeal. I agree with the reasons of Vanstone J.

Ratio Decidendi

Legal Principle Established

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