SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BARRY v POLICE
[2009] SASC 295
Judgment of The Honourable Justice Kourakis
21 September 2009
CRIMINAL LAW - PROCEDURE - POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE - PARTICULAR CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against conviction - appellant pleaded not guilty to assault - Magistrate found the appellant guilty and imposed sentence of three months imprisonment, suspended upon the entering into a bond of good behaviour for 18 months - some discrepancies between prosecution witnesses' evidence - whether Magistrate provided adequate reasons - whether conviction unsafe and unsatisfactory - appellant attended police interview with prepared notes and made several self-serving exculpatory statements but also made some admissions - whether appellant received fair trial and whether miscarriage of justice as a result of prosecution refusal to tender transcript of interview - whether Magistrate erred in declining to order prosecution to tender interview - whether prosecution has obligation to tender such evidence containing "mixed statements" - whether Magistrate's reasons for sentence inadequate and sentence manifestly unjust.
Held: The Magistrate provided inadequate reasons by failing to state the factual basis on which he convicted the appellant - notwithstanding that error of law and some discrepancies between prosecution witnesses' evidence, the appellant is guilty beyond reasonable doubt of the offence charged - prosecution had no obligation at trial to adduce evidence of the appellant's record of interview which contained "mixed statements" - Magistrate did not err in declining to order prosecution to tender the interview - appeal against conviction dismissed - Magistrate failed to provide adequate reasons for sentence - appellant must be re-sentenced - therefore no need to decide if sentence imposed was manifestly unjust - notwithstanding appellant's reasonable antecedent, the need for personal and general deterrence to protect the safety of the community demands no lesser penalty than the one imposed by the Magistrate - appeal against sentence dismissed.
Criminal Law Consolidation Act 1935 s 20(3); Evidence Act 1929 s 18A; Criminal Law (Sentencing) Act 1988 s 9, referred to.
Spence v Demasi (1988) 48 SASR 536; R v Higgins (1829) 3 Car & P 603; 172 ER 565; R v Callaghan [1994] 2 Qd R 300; Middleton v The Queen (1998) 19 WAR 179; S v The Queen (2002) 132 A Crim R 326, applied.
Mahmood v Western Australia (2008) 232 CLR 397, distinguished.
R v Fry [2006] SADC 36, not followed.
R v Familic (1994) 75 A Crim R 229; R v Rymer (2005) 156 A Crim R 84, discussed.
Papps v Police (2000) 77 SASR 210; Mule v The Queen (2005) 79 ALJR 1573; R v Su [1997] 1 VR 1; Males v Police [2009] SASC 52; Yardley v Betts (1979) 22 SASR 108; Birch v Fitzgerald (1975)…
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- Barry v Police [2009] SASC 295
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- [2009] SASC 295
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CaseChat Overview and Summary
The legal issues in this case revolve around the adequacy of the Magistrate's reasons for the conviction, the safety and satisfaction of the conviction given the discrepancies in witness testimonies, the fairness of the trial due to the prosecution's refusal to tender the interview record, and the adequacy of the reasons for the sentence. The court had to determine whether the Magistrate's failure to provide specific findings about the appellant's acts and the preferred witness accounts constituted an error of law that rendered the conviction unsafe and unsatisfactory. The court also needed to decide whether the prosecution had an obligation to tender the interview record containing "mixed statements" and whether the Magistrate's reasons for the sentence were adequate.
The court found that the Magistrate provided inadequate reasons for the conviction by not specifying the factual basis for the conviction. However, despite this error, the court determined that the appellant was guilty beyond reasonable doubt of the offence charged. The court held that the prosecution had no obligation to tender the interview record, which contained mixed statements, and that the Magistrate did not err in declining to order the prosecution to tender it. The court also found that the Magistrate failed to provide adequate reasons for the sentence but did not need to decide if the sentence was manifestly unjust because the need for personal and general deterrence required no lesser penalty than the one imposed. The appeal against conviction was dismissed, and the appeal against sentence was also dismissed.
The final orders of the court were to dismiss both the appeal against conviction and the appeal against sentence. The conviction stood, and the sentence was upheld, with the requirement that the appellant be re-sentenced with adequate reasons provided.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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