ROGERS v Police - [2007] SASC 59

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ROGERS v POLICE
[2007] SASC 59
Judgment of The Honourable Justice David
27 February 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL
Appeal against conviction - appellant convicted of larceny and resisting police - whether inconsistency in police records gave rise to miscarriage of justice - held, appeal dismissed - no basis to disturb magistrate's findings.
Criminal Law Consolidation Act 1935 s 134(1); Summary Offences Act 1953 s 6(2), referred to.

ROGERS v POLICE
[2007] SASC 59
Magistrates Appeal

DAVID J. This is an appeal against conviction. The appellant was charged on complaint with larceny of goods to the value of $2,500 or less, contrary to s 134(1) of the Criminal Law Consolidation Act 1935, and resisting a member of the police force in the execution of his duty, contrary to s 6(2) of the Summary Offences Act 1953. The appellant, who was unrepresented, pleaded not guilty to both charges in the Magistrates Court.
The Facts
On 6 November 2005 two police officers, Senior Constable Westcott and Constable Fegan, were dressed in plain clothes and conducting a general foot patrol in the Target store at Westfield Marion. While in the entertainment section of the store, they noticed a male person, the appellant. The appellant was known to them as he had been spoken to a week earlier by other police officers regarding the theft of DVDs. Constable Fegan then spoke to management while Senior Constable Westcott kept the appellant under observation.
Constable Fegan returned to the entertainment section with Mr Perry, the checkout supervisor of the store. Mr Perry observed the appellant walking briskly to a checkout carrying four DVDs and a bag. The appellant joined the queue for the checkout still holding the four DVDs. After the appellant had passed through the checkout, Mr Perry asked the checkout operator what the appellant had purchased. Mr Perry was told that the appellant had only purchased two DVDs. Mr Perry did not see the appellant discard any of the DVDs he had been holding in the queue.
Mr Perry informed the police officers that the appellant had only purchased two DVDs. The police officers then approached the appellant outside the Shiels Jewellers store, which is located near the Target store. They presented their police identification. The appellant ran to the balcony which overlooks the ground floor of the shopping centre, took a DVD from under his denim jacket and threw it over the balcony to the floor below. As the appellant was running to the balcony, Senior Constable Westcott tried to take hold of him, and another DVD dropped to the ground.
Senior Constable Westcott then attempted to arrest the appellant, and a scuffle ensued. Senior Constable Westcott told the appellant to stop resisting on at least two occasions. This conduct forms the charge of resist police. Eventually the appellant was taken to the ground and handcuffed.
Senior Constable Westcott gave evidence that in addition to the two DVDs which the appellant lost during his attempt to escape apprehension, another two DVDs with the same titles were found in the appellant’s bag, along with receipts for these DVDs.
Constable Regan recorded the items found whilst searching the appellant on a field receipt. Senior Constable Westcott explained in evidence that the two DVDs recorded on the field receipt as items 1 and 2 were not the DVDs found in the appellant’s bag as the appellant had paid for these DVDs, but were the DVDs that he had discarded. Senior Constable Westcott said that he was unsure whether the DVDs which were purchased by the appellant and found in his bag were given back to him at the scene of the incident or later at the police station.
After apprehending the appellant, the police took him to the police station in the Westfield Marion complex where he was interviewed and then to the Sturt Police Station Complex for the purpose of charging him. The appellant was searched, and his personal belongings were booked in for safe-keeping. These items were recorded in a charging book, and a copy of the relevant page of the charge book was tendered in evidence. The relevant page records a number of personal items taken, including "4 x CD’s". Senior Constable Westcott gave evidence that there were no CDs found in the appellant’s possession, only DVDs, and therefore the four CDs were actually 4 DVDs described incorrectly by the charging sergeant.
The Magistrate’s Findings
The appellant gave evidence before the magistrate. The appellant’s account of what occurred differed significantly from the evidence given by the prosecution witnesses. The magistrate accepted the evidence of the prosecution witnesses. The magistrate found Senior Constable Westcott to be a witness of truth and also found Mr Perry to be an excellent and reliable witness who implicated the appellant and corroborated Senior Constable Westcott’s evidence. As for the appellant’s account, the magistrate found his evidence to be dubious and of no integrity.
The magistrate found that the evidence clearly established that the appellant left the Target store without paying for the DVDs. The magistrate explained in his reasons:
I am satisfied the defendant not only left the store without paying for the two DVDs but did so in a furtive, nefarious and intentional manner, attempting to rid himself of the evidence by discarding the DVDs once the police apprehended him.
The Appeal
The appellant complains that he suffered a miscarriage of justice and that the prosecution had not established the charges against him beyond reasonable doubt.
The appellant submits that the evidence does not establish that there were four DVDs, two which he purchased and two which he stole. The appellant argues that there were only ever two DVDs, these being the DVDs which he purchased.
The appellant submits in support of his argument that the documentation presented at trial indicates that there were two DVDs and not four. The charging book page, which was filled out when the appellant was taken into custody, indicated that there were four CDs. According to the appellant, if the police assertions were correct, then he would have had the two DVDs which he properly purchased and were his property, the police having already taken possession of the two DVDs that were discarded and were allegedly not paid for. On the appellant’s version, the four CDs referred not to DVDs but to four other CDs which were lawfully in his possession. Although the police officer who was responsible for the creation of the charging book entry was not called, it was argued by counsel for the respondent on appeal that by describing the appellant being in possession of four CDs, the police officer may have confused two of those CDs with DVDs.
It was also argued that on the field receipt there was only reference to two DVDs. However, on the respondent’s argument this is easily explained because the field receipt only deals with the property that was allegedly stolen, not the property that he properly purchased. The appellant argues that this indicates that the witness Senior Constable Westcott was not telling the truth and that his evidence was a fabrication.
The appellant also argues on appeal that the photograph taken of four DVDs with two Target store receipts was a fabrication. By his finding that he accepted the evidence of prosecution witnesses and rejected the appellant’s evidence at trial, the magistrate clearly rejected that submission.
Conclusion
In my view the prosecution case was overwhelming, and it was clearly open to the magistrate to find that the case had been proved beyond reasonable doubt. In addition to the observations of the prosecution witnesses there was the evidence of the photographs of the four DVDs and the behaviour of the appellant at the time that he was spoken to as described above. The interpretation of the police records sought by the appellant was clearly rejected by the magistrate. In my view, looking at the evidence as a whole, there is no basis to disturb his findings. I would dismiss the appeal.