Petrovich v Jessop 1990 SCCR 1
Citation: Petrovich v Jessop 1990 SCCR 1
Rule of thumb: If you accidentally take something from a shop without paying, is this theft? Generally, yes, it is, but If you can explain why it was genuinely accidental then the Court will deem it not to be.
Judgment:
The basic facts of this case were that the accused took something in a shop and walked straight out of the shop without paying for it. The accused was stopped by a security guard and when asked immediately stated that he was under stress and had not done so intentionally as he was under great stress. The police arrived and confirmed that the accused was acting strangely when they arrived. A lot of evidence was considered in this matter and it was all in all considered that the accused did not have the sufficient level of intent to be prosecuted for theft in this matter, "The situation accordingly was that there were findings for which an inference could be drawn, that when the appellant left the shop he intended not to pay for the two books which he had taken; and that he, in effect, stole these two books. Though these findings are capable of supporting such an inference, it was, of course for the trial judge, in this case the magistrate, to decide whether or not to draw the inference; but it was necessary for him to consider and to assess all the relevant evidence and to determine whether or not the inference of guilt was one which the evidence pointed to beyond all reasonable doubt. Against the drawing of that inference, there was the explanation that the appellant had simply forgotten to pay, possibly because of his recent stress and loss of sleep, an explanation which was tendered at the time and which was apparently given some credence by the police sergeant who interviewed the accused immediately afterwards. In his note, the magistrate deals with the issue in an unsatisfactory and perfunctory manner. He simply states: "After consideration of all the evidence I have no hesitation in accepting the prosecution case that the appellant had deliberately intended to steal the said books and I did not believe the version given by the appellant in his evidence. He gives no indication as to why he drew the inference of guilt and rejected the alternative. To state that one has "no hesitation" in arriving at a conclusion does nothing to explain the processes which have resulted in the conclusion. Although the question as to whether or not a particular inference has to be drawn from a set of facts is essentially one for the trial judge, he must have stateable and defensible reasons for drawing the inference he does draw, given the standard of proof required. We would have expected the magistrate in this instance to elaborate on the reasons why he drew the inference that the appellant had the mens rea necessary to constitute the offence. He simply and without explanation rejects the version given by the appellant, notwithstanding the degree of support which it was apparently given by the police sergeant. We have come to the view that it was not satisfactory in a situation such as this for a presiding magistrate to deal with the issue in so perfunctory a manner. We consider it important that in all these cases justice must not only be done but must be seen to be done. We are not satisfied that the manner in which the magistrate dealt with this case satisfactorily indicated that he had applied his mind with sufficient care to the real issue involved. In these circumstances, we shall quash the conviction." Lord Wylie
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