Batzavalis v Police

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

BATZAVALIS v POLICE

[2015] SASC 125

Judgment of The Honourable Auxiliary Justice Duggan

21 August 2015

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - INDECENT OR OBSCENE LANGUAGE OR BEHAVIOUR AND PROFANE OR OBJECTIONABLE LANGUAGE - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF DEFENCE COUNSEL

This is an appeal against conviction on a charge of behaving in an indecent manner in a place other than a public place.

The principal ground of appeal was that the appellant’s counsel failed to adduce evidence of the appellant’s good character at trial.  Two additional grounds alleged flaws in the Magistrate’s reasoning process in failing to adequately assess the evidence given by the appellant and a failure to exclude a passage of questioning in the appellant’s police interview.

Held (dismissing the appeal):

1.       Potential character evidence would have been of some relevance to both credibility and propensity.  However the evidence of HH and MC was rightly regarded as cogent, and there is not a significant possibility that the available character evidence would have resulted in a different outcome.  There was no miscarriage of justice.

2.       It was unnecessary for the Magistrate to make specific reference to the demeanour of the appellant in the witness box.  The assessment of the appellant’s evidence was adequate.

3.       While the impugned questions should not have been asked by the interviewing officer, the Magistrate did not draw any adverse inference from them.  No miscarriage of justice resulted from the reference to them.

Evidence Act 1929 (SA) s 34P, referred to.
TKWJ v R (2002) 212 CLR 124; Melbourne v R (1999) 198 CLR 1; Zhang v Police [2015] SASC 121; Nudd v R (2006) 225 ALR 161; Palmer v R (1998) 193 CLR 1, discussed.

BATZAVALIS v POLICE
[2015] SASC 125

Magistrates Appeal:         Criminal

DUGGAN AJ.

1. The appellant has appealed against his conviction on a charge of behaving in an indecent manner in a place other than a public place.  The complaint alleged that the offence took place on 15 March 2014 at Salisbury East.

2. According to the prosecution case, the appellant went to the home of MC who had advertised her iPhone for sale on the website Gumtree.  MC said in evidence that the appellant followed her inside her house while she was retrieving the iPhone and that he exposed his penis in her presence while he was inside the house.

3. The principal argument advanced on appeal was that the appellant’s counsel failed to adduce evidence of the appellant’s good character at the trial.  It is claimed that this was a material irregularity which resulted in a miscarriage of justice.  Further grounds of appeal allege flaws in the reasoning process of the Magistrate and a failure to exclude a passage of questioning in the police interview of the appellant.

4. MC was 31 years of age at the time of giving evidence.  She…