Tazroo v Police

[2002] SASC 155

[2002] SASC 155

TAZROO V POLICE

Magistrates Appeal (Criminal)

1. LANDER J.          The appellant was charged with two offences both which occurred on 9 July 2001.  First, that he remained in a non residential building of Imax Theatres as a trespasser with an intention of committing an offence namely larceny and secondly, he was on the same premises without lawful excuse.

2. He pleaded not guilty to both offences and at a trial at which he was represented the charges were found to be proved.  A conviction was entered on the first count.  The second count, which was an alternative to the first count, was dismissed. 

3. The conviction on the first count constituted a breach of the good behaviour condition of three separate bonds. The magistrate refused to excuse the breach and pursuant to s 58(3) of the Criminal Law (Sentencing) Act1988 (SA) he ordered suspended sentences for each of those three bonds to be carried into effect.

4. By reason of the appellant having to serve a sentence of imprisonment he became liable to serve the unexpired balance of a parole period pursuant to s 75 of the Correctional Services Act 1982 (SA).

5. The unexpired balance of the parole periods was nine months and nine days.  The suspended sentences which had to be served were respectively 12 months, 3 months and 3 months. 

6. The conviction on the first count therefore had the effect of requiring the appellant to serve 27 months and 9 days in custody. 

7. The magistrate said he would have imposed a penalty of 13 months imprisonment for the offence for which he was convicted.

8. However, he gave credit to the appellant for the period spent in custody namely five months, one week and five days.  He therefore imposed a period of imprisonment of seven months, two weeks and two days in respect of the appellant’s latest conviction.  He made that sentence cumulative on the other sentences which the appellant became liable to serve by reason of his conviction.

9. The total imprisonment to be served therefore amounted to 34 months, 2 weeks and 11 days.

10. He fixed a non parole period of 15 months.

11. The conviction was entered on 14 November 2001 and the sentence was imposed on 21 December 2001.  On 19 February 2002 the appellant lodged his own notice of appeal.

12. The grounds of appeal are not clear but the notice of appeal complains of both conviction and sentence.  However, the appellant conceded during the hearing of the appeal that if the magistrate was right to enter a conviction the sentence was not manifestly excessive.

13. In respect to the conviction the appellant’s complaint is that the conviction is unsafe and unsatisfactory. 

14. Appeals to this Court from the criminal division of the Magistrates Court are regulated by s 42 of the Magistrates Court Act 1991 (SA) (the Act) and r 96C of the Supreme Court Rules 1987 (SA). 

15. This appeal is out of time.  The appellant has sought an extension of time within which to appeal.  The respondent did not object.

16. In the circumstances I will grant the appellant an extension of time.

17. Section 42 of the Act is in a different form to s 177 of the Justices Act which, formally regulated appeals from the Magistrates Court. However, the appeal is still a re-hearing so that it proceeds on the documents although there is power given to the Court to re-hear any of the witnesses or receive fresh evidence; s 42(4) of the Act.

18. Because it is a re-hearing and because it is an appeal from the Magistrates Court the Court has an obligation to re-hear the case in the sense that it must reconsider all of the evidence before the magistrate together with such other evidence as it might admit.

19. It is the duty of this Court to make up its own mind, after giving due weight to the magistrate’s advantage in seeing and hearing the witnesses, and of course after giving weight to any findings on credibility which depend largely or on part on demeanour.

20. I think the duty of the Court in an appeal under s 42 of the Act is no different to the duty imposed on this Court under the repealed s 177 of the Justices Act; Taylor v Hayes (1990) 53 SASR 282.

21. The appellant was unrepresented on this appeal.  He did not complain of any error of law on the part of the learned magistrate.  His complaint was that the magistrate should not have reached the conclusion that he did.

22. When this matter was first called on the appellant complained of the conduct of his counsel on an application for bail and the conduct of counsel at his trial.

23. The appellant complained that on a bail application on 23 July last year his counsel failed to bring to the Court’s attention a misstatement of fact by the prosecutor.  He complained that the prosecutor had brought to the attention of the Court a fact which had caused the Court to refuse him bail.

24. He further complained of different counsel on the conduct of his trial.  He said that his counsel on the trial had failed to bring to the attention of the Court matters relating to video tapes which were projected to the Court.  Counsel had also failed to bring to the attention of the trial magistrate the conduct of the prosecutor on the bail application.  Finally, he wished to bring to this Court’s attention the fact that the prosecutor had offered, and he had accepted, that he would plead to a lesser charge than that which he was convicted.

25. The matter was adjourned so that the appellant could consider calling fresh evidence.  When the matter was called on again the appellant had not marshalled any further evidence.  He then indicated to the Court he wished to subpoena the two lawyers to whom I have referred.  He said, however, that because he was in custody he found it difficult to organise the issue of the subpoenas.

26. In those circumstances Ms Barnett, who appeared on behalf of the prosecutor, offered to issue subpoenas to the two lawyers.  In due course she did that and both lawyers appeared in response to the subpoenas.  Ms Barnett also made available the prosecutor by having him available to be called.

27. I allowed the appellant to recall both lawyers and the prosecutor.

28. I have no hesitation in finding that none of the complaints made out by the appellant in relation to those matters were proved.

29. It was the appellant’s argument that because he had not obtained bail he was unable to find witnesses who would have supported his defence.  However, I do not believe that there was a misstatement of fact made by the prosecutor at the bail hearing.  Nor do I believe that his solicitor on that occasion failed to correct that misstatement.    There was no conduct on the part of the prosecutor or on the part of the appellant’s solicitor which prejudiced the appellant in the conduct of his defence. 

30. I am also not satisfied that the appellant’s counsel at trial failed in his duty to the appellant.  I do not believe that he failed to act in accordance with his instructions.  There was nothing that he did not put to the Court that was of relevance.  Some of the matters which the appellant complained of were clearly irrelevant.

31. In those circumstances, this is not a matter where any fresh evidence has cast any doubt on either the procedural fairness accorded the appellant or the conviction itself.

32. Even though no complaint was made of the magistrate’s approach to the case I have examined his reasons for the purpose of ensuring that the magistrate did not misdirect himself in any way.

33. It appears to be clear that the magistrate directed himself appropriately as to the elements of the offence.  He gave himself appropriate and proper directions in relation to the onus and standard of proof.  His reasons do not expose any error of law.

34. I can therefore move to the matter complained of by the appellant.

35. The facts in this case were quite uncomplicated.  The premises in which the appellant was found at 3 Cinema Place, City, were owned and occupied by Imax Theatres.

36. There was no doubt that the appellant entered the premises lawfully at some time on Sunday 8 July 2001.  The premises at the time he entered were open to the public.

37. After the last film was shown and the public had left a staff member, Mr Mark Tatyzo, closed the doors of the theatre and set an internal alarm system.  The doors were secured and locked.

38. At about 11.30pm on Sunday 8 July 2001 a witness, Mr Carter, who was at the premises of another theatre, the Palace Theatre, heard the alarm operating at Imax Theatres.  He looked into the theatre and saw the silhouette of a figure inside the foyer.  He saw the figure walk to the ticket box, climb over the counter and sometime later climb back again.  There was a till and computer in the ticket box area.

39. He saw the defendant then walk from the ticket box area to the candy bar where the figure squatted and began looking about.

40. Mr Carter became suspicious.  He took a torch from his office at the Palace Theatre and walked to the eastern entrance of Imax Theatres.  He shone the torch through the glass door towards the candy bar and scanned the candy bar with a torch.

41. He saw no further movement at that time.  He asked a member of his staff to ring the police. 

42. At about 11.50pm on Sunday 8 July 2001 police officers arrived.  They went first to the eastern entrance of the theatre.  One of the police officers asked police communications to contact the after hours number for Imax Theatres. 

43. At 12.43am on Monday 9 July 2001 the theatre manager, Ms Nyveld attended at the premises.  She and a police officer entered the ground floor of the premises, opened a door at the eastern entrance to allow another police officer to enter.

44. The police officers then approached the candy bar where they found the appellant lying on the floor in the area behind the candy bar.

45. The appellant told the police officers that ‘I was here last night, I fell asleep’.

46. The appellant was later interviewed at the City Watch House and the property he was carrying was seized which included was carrying a mobile phone and a pair of gloves.

47. Imax Theatre had its own internal security system which took surveillance film. 

48. That surveillance film was tendered.  It showed Mr Tatyzo leaving the premises and securing the premises.  It also showed Ms Nyveld and two police officers inside the building.  It showed film of the appellant within the premises.

49. The question in this case was a simple one and that was whether or not the appellant had fallen asleep inadvertently or whether he was on the premises for the purpose of committing larceny.

50. The magistrate accepted the evidence of the witnesses called for the prosecution.  He accepted that the circumstantial case advanced by the prosecution established that the appellant was on the premises for the purpose alleged in the charge.  In particular he was impressed by the appellant’s failure to respond to torchlight thrown by Mr Carter through the window.  He was also impressed by the accused’s failure to respond to torchlight thrown by the police officers into the building.

51. The learned magistrate did not accept the accused’s evidence for his failure to use his mobile phone to obtain an exit from the premises.

52. In the end result the accused’s evidence was rejected and the learned magistrate was satisfied beyond reasonable doubt of the elements of the offence.

53. The issues in this case were straightforward and involved an assessment of the credibility of the witnesses.  The magistrate had a significant advantage which this Court does not enjoy in seeing and hearing the witness; Devries v Australian National Railways Commission and Anor (1993) 177 CLR 472.

54. In my opinion, it has not been demonstrated by the appellant that the magistrate’s findings of fact based upon those findings of credibility were inconsistent with facts incontrovertibly established by the evidence or was glaringly improbable.

55. Having rejected the appellant’s evidence the learned magistrate correctly approached his task in considering whether the prosecution evidence was sufficient to make out the charge beyond reasonable doubt.

56. In my opinion, it has not been shown that the conviction is unsafe or unsatisfactory or that the appellant was occasioned any miscarriage of justice.

57. The appeal against conviction should be dismissed.

58. The appellant has a significant criminal history which is demonstrated by the bonds which were breached and the non parole period which had to be served as a result of the entry of this conviction.

59. A sentence of 13 months imprisonment in relation to this offence is not, in my opinion, manifestly excessive having regard to the appellant’s antecedents and the particular need for personal deterrence.  The appellant was right to make the concession he did on this aspect of the appeal.

60. In my opinion the appeal against sentence should also be dismissed.