Barry v Police

Case [2009] SASC 295

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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AGLC
Barry v Police [2009] SASC 295
Case
[2009] SASC 295
Decision Date

CaseChat Overview and Summary

The case of Barry v Police involves the appellant, Barry, who was convicted by a Magistrate of assault. The appellant appealed both the conviction and the sentence. The appeal against conviction is based on the grounds that the Magistrate did not provide adequate reasons for the conviction, the conviction is unsafe and unsatisfactory due to discrepancies in witness testimonies, and the appellant did not receive a fair trial because the prosecution did not tender a record of the police interview. The appeal against sentence argues that the Magistrate did not provide adequate reasons for the sentence and that the sentence is manifestly unjust.

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

For the reasons that follow, I would dismiss both the appeal against conviction and the appeal against sentence.Facts and Background The appellant was charged with assault because it was alleged that on Friday 6 April 2007 (the Friday of the Easter weekend) at Port Julia, he intentionally applied force directly to Sara Smart-Chaustowski. The Magistrate referred to the background to the incident in the “Preamble” to his judgment as follows:Adam Barry, the defendant, and Kate Clark (Kate), his partner at the time, arranged a holiday for the 2007 Easter period at Port Julia. They had hired a holiday house there. The defendant did most of the organisation for that holiday and paid for the accommodation on the house. Kate’s younger brother Jesse who was 14 years old at that time and his friend Kieren were invited to join them for the holiday. The defendant and Kate also invited Sara Smart-Chaustowski (Sara), Kate’s and Jesse’s cousin, to join them as part of the holidaying group… On Friday afternoon of the Eater weekend they were also joined by Sara’s brother Dylan, his partner and a friend of theirs.[1][1] Police v Barry [2009] SAMC 34, Judgment of Magistrate Baldino, 20 April 2009, at [6]. The prosecution called Ms Smart-Chaustowski, Kate Clark, Jesse Clark and Ms Audrey Faye Cook as witnesses. Ms Smart-Chaustowski was the victim of the assault. Kate Clark and Jesse Clark were both eye-witnesses to the assault. Ms Cook is a registered nurse who treated Ms Smart-Chaustowski after the assault. Ms Smart-Chaustowski, Kate Clark and Jesse Clark gave accounts of the assault that, although differing in ways which I shall need to explore further in these reasons, essentially included the following basic facts. Ms Smart-Chaustwoski and Kate Clark were sitting in the victim’s car which was parked in front of the holiday house at Port Julia. The appellant approached the car in an angry and aggressive manner. He yelled at Ms Smart-Chaustowski, telling her to leave the holiday house. Ms Smart-Chautowski responded to the appellant, got out of her car and walked around to the appellant on the other side of the car. The appellant then leaned in very close to her face. Ms Smart-Chaustowski pushed the appellant, as a result of which the appellant stumbled a step or two away from her. He then grabbed her and forced her on to the bonnet of the car, applying such force that the she hit her head hard on the car. They both moved off the car and on to the ground. There the appellant punched Ms Smart-Chaustowski in the face and pinned her to the ground. At some point after the appellant forced Ms Smart-Chaustowski on to the car, she scratched his face. However, all three witnesses testified that Ms Smart-Chaustowski did not punch the appellant in the stomach when that was suggested by counsel for the appellant in cross-examination.Appeal against conviction The appellant appeals against his conviction on three grounds. First, the appellant complains that the Magistrate gave inadequate reasons for finding him guilty of the offence charged because the Magistrate made no specific findings as to the specific acts of his which formed the factual basis upon which he was convicted, and because the Magistrate failed to give reasons as to which of the different accounts given by the witnesses he preferred. Secondly, the appellant complains that the conviction is unsafe and unsatisfactory because a conclusion of guilt cannot be reached beyond reasonable doubt given the differences between the witnesses’ testimonies. Thirdly, the appellant contends that the prosecution’s refusal to tender a record of interview of the appellant taken by the police meant that the appellant did not receive a fair trial, and that the conviction should be set aside. I will deal with each of those grounds in turn.Inadequate reasons

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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