White v Police - [2010] SASC 290

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WHITE v POLICE
[2010] SASC 290
Judgment of The Honourable Justice Vanstone
15 October 2010
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - CONVICTIONS
Appellant convicted of theft after trial - whether conviction bad for uncertainty - whether conviction unsafe and unsatisfactory - whether good character evidence was properly brought to account.
Held: appeal dismissed.
Weissensteiner v The Queen (1993) 178 CLR 217; R v Trimboli (1979) 21 SASR 577, considered.

WHITE v POLICE
[2010] SASC 290
Magistrates Appeal

VANSTONE J: The appellant was charged with theft of seven blue “Marrell” bins of the value of $30,000, the property of OneSteel. The original charge alleged the theft of eight such bins, which was the number seized by police; but upon his trial in the Magistrates Court the particulars of the charge were amended to allege seven only. At the end of the short trial the learned magistrate reserved her decision and later delivered carefully compiled reasons for finding the appellant guilty of stealing only two of the bins.
At the hearing of the appeal in this Court, the Notice of Appeal was amended to replace the original grounds of appeal with seven new ones, some of which were refinements of the originals. The grounds raise the issue of whether the magistrate’s reasons should be interpreted as relating to two of the seven bins seized by police and the subject of the charge, or, alternatively might have related to two different bins. If they were two of the seven seized bins, then it is said there was no way of determining which two they were. Further, it is contended that, such were the infirmities associated with the witness, Mr Clifton, upon whose evidence the finding of guilt must have been based, that the findings were unsafe and unsatisfactory. Then it is said that the magistrate erred in the way that evidence of good character was brought to account in considering whether the charge was proved.
Background
The evidence established that the appellant managed a waste metal recycling business in Port Augusta known as “Goldfields”. One of the firms with which Goldfields dealt was Smorgens. In about 2008 Smorgens was taken over by OneSteel. From that time OneSteel owned all the property of Smorgens, including some 500 or so Marrell bins. Marrell bins are large steel bins which have fittings by which they may be lifted with specific equipment fitted to the back of a truck, being two hydraulic arms and four chains. Smorgens bins were painted blue. It does not appear that at the relevant time either Smorgens or OneSteel had records of the location of bins belonging to them. Goldfields also owned bins – though not Marrell bins – and Goldfields did not own a truck with the hydraulic equipment necessary to handle the Marrell bins.
On 17 September 2009 police attended at the Goldfields premises to search for Marrell bins. They found eight of…

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 White v Police

Details

AGLC: White v Police [2010] SASC 290
Case: [2010] SASC 290
Decision Date: 15 October 2010

CaseChat Overview and Summary

In the case of White v Police, the appellant was convicted of theft and appealed to the court. The appeal focused on the uncertainty of the conviction, the safety and satisfaction of the findings, and the treatment of good character evidence. The appellant argued that the magistrate's reasons for the conviction were unclear, particularly concerning which bins were involved in the theft. Additionally, the appellant claimed that the conviction was based on unreliable evidence from a witness, Mr Clifton, and that the magistrate improperly considered the evidence of good character. The appeal raised significant issues about the procedural fairness and reliability of the conviction.

The court had to determine whether the magistrate's reasons for conviction were sufficiently clear to justify the outcome. It was also necessary to assess whether the evidence provided was reliable and sufficient to support a conviction. Moreover, the court needed to examine whether the magistrate appropriately considered the evidence of the appellant's good character. The reliability of the evidence and the application of the law in this context were central to the appeal.

The court found that the magistrate's reasons for the conviction were clear and that there was no error in the treatment of the evidence. The court held that the evidence, particularly from Mr Clifton, was reliable enough to support the conviction. The court also found that the magistrate appropriately considered the evidence of good character. The appeal was dismissed as none of the criticisms levelled against the magistrate's decision were substantiated.

The final orders of the court were to dismiss the appeal, confirming the conviction of the appellant for theft. The court upheld the magistrate's decision, finding it to be fair and based on reliable evidence.

Orders

Orders of the court

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Background

Background to the litigation

At the hearing of the appeal in this Court, the Notice of Appeal was amended to replace the original grounds of appeal with seven new ones, some of which were refinements of the originals. The grounds raise the issue of whether the magistrate’s reasons should be interpreted as relating to two of the seven bins seized by police and the subject of the charge, or, alternatively might have related to two different bins. If they were two of the seven seized bins, then it is said there was no way of determining which two they were. Further, it is contended that, such were the infirmities associated with the witness, Mr Clifton, upon whose evidence the finding of guilt must have been based, that the findings were unsafe and unsatisfactory. Then it is said that the magistrate erred in the way that evidence of good character was brought to account in considering whether the charge was proved.Background The evidence established that the appellant managed a waste metal recycling business in Port Augusta known as “Goldfields”. One of the firms with which Goldfields dealt was Smorgens. In about 2008 Smorgens was taken over by OneSteel. From that time OneSteel owned all the property of Smorgens, including some 500 or so Marrell bins. Marrell bins are large steel bins which have fittings by which they may be lifted with specific equipment fitted to the back of a truck, being two hydraulic arms and four chains. Smorgens bins were painted blue. It does not appear that at the relevant time either Smorgens or OneSteel had records of the location of bins belonging to them. Goldfields also owned bins – though not Marrell bins – and Goldfields did not own a truck with the hydraulic equipment necessary to handle the Marrell bins. On 17 September 2009 police attended at the Goldfields premises to search for Marrell bins. They found eight of them, being seven white and one blue. They were photographed in situ, and seized. It does not appear that they have at any stage been forensically examined. They were not tendered at trial, although photographs of them were. The main thrust of the prosecution case came from the evidence of the witnesses Long, Clifton and Corbett. In order to evaluate the appellant’s contention that Mr Clifton’s evidence could not be safely relied on, it is necessary to examine their evidence in some detail. Mr Long’s evidence was to this effect. He formerly drove trucks for Goldfields. After an injury he worked on site at the premises at Port Augusta. He became aware of a man whose name was Drewe, a driver for Smorgens, who sometimes called in and had coffee with the defendant. Commonly his truck would be carrying Smorgens’ Marrell bins. In about April 2008 Mr Long said he noticed Smorgens’ Marrell bins in the Goldfields yard. Mr Long said that on several occasions a man called Tim Corbett attended the Goldfields yard and sandblasted Smorgens bins and then painted them white. This was done in the rear yard “towards … the eastern fence line”. Ultimately the magistrate was not prepared to rely on Mr Long’s evidence of Mr Corbett’s activities.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view, the magistrate was generous in giving the evidence such weight as she appears to have. Furthermore, she did not err in her treatment of it.Conclusion As I have said, none of the criticisms levelled at the reasons of the magistrate have been sustained. The appeal must be dismissed.

Ratio Decidendi

Legal Principle Established

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