R v Clark (No 3) - [2022] SADC 45

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v CLARK (No 3)
[2022] SADC 45
Reasons for Ruling of his Honour Judge Cuthbertson
14 April 2022
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS
The applicant is charged with 46 counts of Theft and 7 counts of Dishonestly Dealing with Documents allegedly committed between 23 January 2008 and 11 June 2013. He has made an application for the 46 counts of theft to be stayed on the basis that they are foredoomed to fail as particularised on the Information and in the draft prosecution written opening dated 4 April 2022. Consideration and discussion of the elements of theft, namely that the applicant dealt with the property without the consent of the owner.
HELD:
i. 'Owner' under s 130 of the Criminal Law Consolidation Act 1935 (SA) refers to anyone particularised by the Prosecution and not all the theoretical owners who match the definition;
ii. In a charge of theft under s 134 of the Criminal Law Consolidation Act (SA), Prosecution need only prove lack of consent in at least one of the particularised owners if there are more than one;
iii. Prosecution can never prove lack of consent in the two owners particularised in counts 1-15, see VDP4;
iv. Prosecution may be able to prove lack of consent in theft counts found at counts 16-54, see VDP4;
v. Stay of proceedings in counts 1-15 as there is no evidence of lack of consent of owner;
vi. Prosecution could prove the element of theft of intention to permanently deprive.
Criminal Law Consolidation Act 1935 (SA) ss 130(b), 34(1), 134(1)(b), 134(1)(c),189; Crimes Act (NSW) s 173; Victorian Crimes Act (Vic) s 72, referred to.
Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410; Attorney Generals Reference (No 1 of 1985) (1984) 41 SASR 147; R v R (1991) 57 A Crim R 39; Thorp v Abbotto (1992) 34 FCR 366; Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1; Macleod v R (2003) 214 CLR 230; R v McGee [2008] 102 SASR 318; R v Kerin [2013] 116 SASR 316, [2013] SASCFC 56, considered.

R v CLARK (No 3)
[2022] SADC 45

The applicant is presented on an Information in this Court filed on 17 November 2017.
This is a sixth application pursuant to Rule 49 of the District Court Rules and the second to permanently stay proceedings in respect of charges of Theft.
The application is for a permanent stay in relation to 46 Counts of Theft under s134(1) of the Criminal Law Consolidation Act 1935.
The basis for the application is that it is asserted that the prosecution can never succeed in proving the charges because it can never prove beyond reasonable doubt the element of the offence, that the applicant dealt with property of the owner without the consent of the owner.
With one exception, the applicant agrees that there…

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 Clark (No 3)

Details

AGLC: R v Clark (No 3) [2022] SADC 45
Case: [2022] SADC 45
Decision Date: 14 April 2022

CaseChat Overview and Summary

In the case of R v Clark (No 3), the defendant was charged with multiple counts of theft under section 134 of the Criminal Law Consolidation Act 1935 (SA). The primary dispute in this case was the interpretation of the term "owner" under section 130 of the same Act and whether the prosecution had adequately proven the lack of consent from the relevant owners for the counts in question. The matter was heard in the Supreme Court of South Australia.

The court was tasked with determining the precise meaning of "owner" under section 130 and whether the prosecution needed to prove lack of consent from all potential owners or just those specifically identified in the charges. Additionally, the court had to assess whether the prosecution had successfully demonstrated the necessary lack of consent for each count of theft and if the prosecution could prove the element of intention to permanently deprive for the counts in question.

The court found that the term "owner" under section 130 refers to those individuals specifically identified by the prosecution, rather than all theoretical owners who meet the definition. Regarding the requirement of proving lack of consent, the court ruled that the prosecution only needed to demonstrate lack of consent from at least one of the particularised owners if multiple owners were identified. However, the court determined that the prosecution had failed to provide evidence of lack of consent from the owners particularised in counts 1-15. Conversely, the court found that there was potential for the prosecution to prove lack of consent for the theft counts found at counts 16-54.

Given the findings, the court ordered a stay of proceedings for counts 1-15 due to the lack of evidence regarding the lack of consent from the identified owners. The court did, however, note that the prosecution could potentially meet the necessary requirements for counts 16-54, pending further evidence.

Orders

Orders of the court

HELD:

i. 'Owner' under s 130 of the Criminal Law Consolidation Act 1935 (SA) refers to anyone particularised by the Prosecution and not all the theoretical owners who match the definition;

ii. In a charge of theft under s 134 of the Criminal Law Consolidation Act (SA), Prosecution need only prove lack of consent in at least one of the particularised owners if there are more than one;

iii. Prosecution can never prove lack of consent in the two owners particularised in counts 1-15, see VDP4;

iv. Prosecution may be able to prove lack of consent in theft counts found at counts 16-54, see VDP4;

v. Stay of proceedings in counts 1-15 as there is no evidence of lack of consent of owner;

vi. Prosecution could prove the element of theft of intention to permanently deprive.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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