Theophilus v Police

The case of Theophilus v Police involved an appeal against the conviction of the appellant, an employee of North East Mitsubishi, on four counts of deception contrary to section 139(a) of the Criminal Law Consolidation Act 1935 (SA). The appellant arranged for suppliers to bill North East Mitsubishi for goods and services that were not intended for the company, with the benefit accruing to the appellant instead. The appellant was initially charged with 13 counts of deception, but was found guilty on counts 3, 9, 10 and 12, and not guilty on the remaining nine counts.

The primary legal issues in this appeal were whether the Magistrate correctly determined that the misrepresentations caused the relevant benefits to be received by the appellant, and whether the Magistrate erred in drawing certain inferences against the prosecution and the appellant. The appellant argued that the prosecution failed to call the accounts clerk at North East Mitsubishi, that an adverse inference should not have been drawn against the appellant's counsel for not complying with the rule in Browne v Dunn, and that the Magistrate's finding of "consciousness of guilt" was incorrect. The appellant also contended that the requisite "deception" was not established beyond reasonable doubt.

The Court of Appeal held that the appeal should be dismissed in relation to counts 9, 10 and 12, but allowed in relation to count 3. The Court found that the Magistrate correctly determined that the misrepresentations caused the relevant benefits to be received by the appellant, and that there was no obligation on the prosecution to call the accounts clerk at North East Mitsubishi. The Court also found that the Magistrate erred in drawing an adverse inference against the appellant's counsel for not complying with the rule in Browne v Dunn, and that the Magistrate's finding of "consciousness of guilt" may have gone beyond a mere adverse finding as to credibility and wrongly extended to an admission of positive evidence. However, the Court held that this error did not require the conviction on count 9 to be set aside in the circumstances. In relation to count 3, the Court found that the possibility of an innocent ordering by the appellant of the cabinet coupled with a later and separate formation of an intention to steal the cabinet could not be negated beyond reasonable doubt. Consequently, the conviction on count 3 was set aside, and the Information insofar as it relates to count 3 is dismissed with no order for a retrial.

DECISION:
The appeal is dismissed in relation to counts 9, 10 and 12, but will be allowed in relation to count 3 only. The conviction on count 3 is set aside and the Information insofar as it relates to count 3 is dismissed with no order for a retrial.