Alexopoulos v Police No. Scgrg-00-1050

[2000] SASC 434

ALEXOPOULOS  v  POLICE
[2000] SASC 434

Magistrates Appeal (ex tempore)

1................ DUGGAN J....... The appellant was convicted of assault occasioning actual bodily harm after a trial in the Adelaide Magistrates Court.  He now appeals against conviction.  The information alleged that the offence took place at Brooklyn Park on 31 July 2000.  This is an error as the evidence relates to an incident which took place on 31 July 1999.

1. The complainant is Mr Allan Osborne who is the owner of the Airport Hotel situated at Brooklyn Park and the Seawall Apartments which are at Glenelg.  At about 7.00 pm on 31 July 1999 three men entered the reception area of the Airport Motel.  They spoke first to a Mr Sylvester and then to Mr Osborne.  While Mr Osborne was speaking to the men, Mr Sylvester retired into an adjoining room.  There was a dispute over an accommodation booking at the Seawall Apartments.  Some accommodation had been booked for two persons and the men now wanted accommodation for five men.

2. One of the men started to argue with Mr Osborne.  The other men left and went outside.  The remaining man pulled Mr Osborne over the counter towards him and punched him in the face breaking his glasses and causing an injury to one of his eyes.  The man then went out and got into a white vehicle with a Victorian registration plate.  Mr Osborne and Mr Sylvester saw the car but were unable to take down the number of the vehicle.

3. It would appear that the booking had been made in Mildura and on 24 August 1999, the person who took the booking sent a facsimile transmission to Mr Osborne which referred to the booking and gave the names of three men.  It is not clear what use the learned magistrate made of that evidence, but it is unnecessary to look further into the issue because of other events which took place in the course of the hearing.

4. On 7 February 2000, the appellant was interviewed by police officers at the Sturt Police Centre.  It was put to him that he was the offender, but he declined to answer questions.  He also declined to take part in an identification parade.  On 2 April 2000 Mr Osborne was shown photographs of 12 men.  He identified the person in photograph number 4 as the offender.  The fact of this identification was established at the hearing, but for some reason the prosecution did not adduce evidence of the identity of the man in photograph 4.  It may be that the prosecutor expected Mr Osborne to identify the appellant in court.  However, Mr Osborne was unable to identify the appellant at the trial.  Mr Sylvester was called but he was unable to identify the appellant.

5. At the conclusion of the prosecution case Mr Noblet, who then acted for the appellant, made a submission of no case to answer.  In the course of doing so, he was put to an election in relation to the giving of evidence.  He indicated that no evidence would be called by the appellant.

6. The learned magistrate commenced giving reasons which Mr Noblet understood were part of a ruling on the submission of no case to answer.  However it became apparent that the magistrate was delivering his reasons for final judgment and he announced in the course of those reasons that he found the appellant guilty of the offence with which he was charged.

7. I accept the assertion in Mr Noblet’s affidavit that he had other submissions to put by way of a final address.  The learned magistrate should have gone on to receive final submissions in the event of a finding of a case to answer.  Furthermore, the learned magistrate seems to have assumed that photograph number 4 was the appellant’s photograph.  As I have said, there was no evidence in relation to this aspect.  It was a fatal flaw in the prosecution case.

8. Apart from these considerations, the learned magistrate appears to have attached no significance to the fact that Mr Osborne failed to identify the appellant in court.  If there had been no gap in the prosecution case relating to the photographic identification, the failure to identify may not have been fatal to the prosecution case.  However, it was a significant consideration to take into account when assessing the evidence and determining whether the charges had been proved beyond reasonable doubt.  The photographic identification did not take place until over eight months after the incident.  The trial took place on 16 October 2000 so that approximately six months after the photographic identification Mr Osborne was unable to identify the appellant in the flesh.  The reasons of the learned magistrate do not record whether he considered this to be an important circumstance.

9. The respondent has rightly conceded that the conviction cannot stand by reason of the failure by the prosecution to link the photograph which was picked out with the appellant and because of the denial to the appellant’s counsel of the right to present a final address to the court.  Although not part of the concession there is also the consideration that Mr Osborne did not identify the appellant in court and, because of the delayed photographic identification, this was a significant factor in determining the reliability of the earlier identification.  It follows that the conviction must be quashed and the penalty set aside.

10. The only issue of contention is that relating to whether a retrial should be ordered.  There is no presumption in favour of a retrial and the discretion must be exercised by reference to the relevant facts and circumstances.  (Cheatley v R [1981] Tas R 123 at 137-138.) In Gerakiteys v R (1984) 153 CLR 317 at 321, Gibbs CJ held that it would be inconsistent with basic principle to order a new trial in a case in which evidence at the original trial was insufficient to justify a conviction (see also Deane J at 331). The same view was expressed in the joint judgment of the High Court in DPP (Nauru) v Fowler (1984) 154 CLR 627 at 630 where their Honours said:

    “The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, or if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case.”

11. In the light of these authorities it is clear to my mind that the discretion should be exercised against a retrial.  There was an obvious gap in the prosecution case brought about by the failure to link the photographic identification with the appellant.  In these circumstances it would be unfair to provide an opportunity to the prosecution to supplement this deficiency on a retrial.  The fact that Mr Osborne could not identify the appellant at the trial is a further matter for concern.

12. In these circumstances the appeal will be allowed, the conviction quashed and the sentence and other orders made by the learned magistrate set aside.