Tazroo v Police No. Scciv-02-268

[2002] SASC 285

TAZROO  v  POLICE
[2002] SASC 285

Civil (Ex Tempore)

1. LANDER J.           This is an application for leave to appeal from an order of this Court made on 21 May 2002 dismissing an appeal from the decision of a magistrate convicting the applicant of trespass with intention to commit an offence and being on premises without lawful excuse.

2. Section 50(3) of the Supreme Court Act 1935 (SA) requires an applicant to obtain leave of the judge who heard the appeal from the appeal from the Magistrates Court or if leave cannot be obtained from that judge, the Full Court.

3. Rule 94.01of the Supreme Court Rules obliges an applicant to first apply to the judge who heard the appeal, either at the time that the judgment was delivered or by an application made ex parte or on notice, within 14 days from the date of delivery of the judgment. This application was made on 27 May 2002 but was not received in this Court until 7 June 2002. Nothing turns upon any delay on the part of the applicant in making this application and insofar as is necessary I extend the time within which the applicant may make the application for leave to appeal to me until 7 June 2002 pursuant to r 94.01.

4. The applicant who was unrepresented on this application and on the appeal has followed the correct procedure, subject to the exception I have already mentioned.

5. The applicant is an articulate man who is able to present clear argument and is confident enough to put all his arguments at length.  He has shown this on both the appeal and on this application.

6. The principles on an application such as this are not in doubt.  Ordinarily, leave to appeal is not granted unless the applicant can show there is some matter of general principle or importance which ought to be considered by the Full Court, that the judgment sought to be appealed from is attended with sufficient doubt or that in all of the circumstances the application should be granted to avoid any possibility of any miscarriage of justice.

7. At trial the prosecution relied, in part, upon surveillance tapes which showed the applicant on the premises and his movements about the premises.

8. On the appeal the applicant did not argue that the tapes were not inadmissible but on this application he has argued that a matter of general importance for the consideration of the Full Court is the question of the admissibility of those tapes. He said that those tapes should not have been admitted because they were prejudicial. There is no doubt that the film depicted in the surveillance tapes was prejudicial to the act. Those tapes indicated movements of the applicant over a considerable time. They showed his position in the premises, his movement about the premises and his failure to react to circumstances to which, it might be inferred, an innocent person would react.

9. There is no doubt that the tapes were prejudicial to the applicant. However, a lot of evidence which is tendered in criminal trials is prejudicial, that is the point of tendering evidence from the prosecution’s point of view. The applicant has suggested that the tapes should not have been admitted in the exercise of discretion of the magistrate because their prejudicial value outweighed their probative value. There is nothing in that point at all. The tapes were clearly probative of the applicant’s guilt.

10. The applicant also argued that the tapes should not have been admitted because he had admitted that he was on the premises at the time. He argued that in those circumstances the Full Court should consider the question of the admissibility of those tapes. Again, in my opinion, there is nothing in that point. Because the applicant admitted he was on premises did not preclude the prosecution from leading evidence to establish both that fact and further facts which might be inferred from the tapes. It was those further facts which might be inferred from the tapes which, after the admission had been made, were more important to the prosecution case.  In my opinion the admission by the applicant that he was on premises did not preclude the prosecution from tendering the evidence contained in the surveillance tapes.

11. On this application the applicant has gone to a number of paragraphs contained in my reasons’, as Ms Barnett has said, effectively trying to reargue the appeal.  For example his criticism of one of the paragraphs of my reasons. In paragraph 38 of my reasons I have said: ‘At about 11.30 pm 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 theatres 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.’

12. The applicant has argued that I was wrong to say that Mr Carter had given the evidence contained in that paragraph. He said that evidence was not contained in Mr Carter’s evidence but was depicted in the surveillance tapes. Without agreeing with the premise made by the applicant, it rather shows the futility of most of the applicant’s submissions on this application. He agrees that he was the person inside the foyer. He agrees he was the person who walked to the ticket box, that he climbed over the counter and sometime later climbed over it again. He agrees there was a till and computer in the ticket box area.  Notwithstanding he does not dispute any of the facts contained in the paragraph he would wish the Full Court to re-examine the finding contained in the paragraph.

13. I do not intend in these reasons to consider every submission made by the applicant in relation to each of the paragraphs in my reasons. In the end result it was the applicant’s contention on this application that there was not sufficient evidence to establish the offences beyond reasonable doubt. In my opinion, for the reasons I have expressed when dismissing the applicant’s appeal there was sufficient evidence for that finding.  I agree that the magistrate was correct in making that finding.

14. The applicant has argued that the inferences raised by the magistrate, with which I have agreed, should not have been raised because the evidence was that nothing was stolen from the theatre, nor was anything damaged. That submission is entirely irrelevant. He was not charged with larceny, but with the intention of committing larceny. He was not charged with damage or any offence associated with damage.

15. Lastly, the applicant has sought leave to appeal against the sentence imposed by the magistrate. When this matter was argued before me, I raised with the applicant whether he wished to pursue his appeal against sentence. He told me that he wished to withdraw that part of his appeal. He has agreed on this application that he withdrew the appeal against sentence. He agrees that there was no miscarriage of justice in that respect. He agrees there was no fault on anyone’s part and that he knew what he was doing in withdrawing that part of the appeal. He said, however, that he had not thought about that part of the appeal when he was asked whether he wished to pursue it. He thought at that stage that his appeal against conviction would be allowed.

16. In my opinion, even though he was unrepresented, the applicant knew that in withdrawing his appeal against sentence that aspect would not be considered by me, and that if his appeal against conviction failed, he would have to serve the sentence imposed by the magistrate.

17. However, because he was unrepresented I think it is still appropriate to consider whether he ought to be given leave to appeal against sentence, notwithstanding the abandonment of that appeal before me.

18. In my opinion, as I have remarked in my reasons, the sentence imposed upon the applicant was not manifestly excessive, in particular having regard to the applicant’s antecedents and, in particular having regard to the need for personal deterrence.

19. I remarked in my reasons that the applicant was right to make the concession he did in abandoning the appeal against sentence. In my opinion he was still right to have done that. The sentence imposed was clearly within the exercise of the magistrate’s sentencing discretion.

20. In those circumstances I make the following orders:

    1. The time within which the application for leave to appeal from my decision of 21 May 2002 extended until 7 June 2002.

    2. The application for leave to appeal against conviction and sentence is dismissed.