Blair v Police - [2022] SASC 132

Supreme Court of South Australia
(Appeal to a Single Judge)
BLAIR v POLICE
[2022] SASC 132
Judgment of the Honourable Justice Blue
17 November 2022
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE
The appellant was convicted by a Magistrate of two counts of serious criminal trespass in a place of residence in contravention of section 170 of the Criminal Law Consolidation Act 1935, after having pleaded guilty to those charges.
The appellant appeals against the convictions on the grounds that:
1on the admitted facts he could not have been convicted of serious criminal trespass in a place of residence because the car park in which he trespassed did not comprise a place of residence within the meaning of section 170 or he did not know and was not reckless as to that fact; and
2the circumstances in which his guilty pleas were entered involved a miscarriage of justice by reason of which he should be permitted to withdraw them.

The appellant applies for an extension of time in which to appeal.
Held (granting an extension of time and allowing the appeal):
1There is a real question as to whether the car park in which the appellant trespassed was part of a “place of residence” (at [74]).
2The appellant’s guilty pleas did not reflect a consciousness of guilt and he lacked an appreciation of the nature of the charges or the facts alleged against him (at [75]).
3The circumstances in which the appellant’s guilty pleas were entered involved a miscarriage of justice by reason of which he should be permitted to withdraw them: ground 2 is established (at [78]).
4The appellant has not established that on the admitted facts the appellant could not have been convicted of serious criminal trespass in a place of residence because the car park in which he trespassed did not comprise a place of residence or he did not know and was not reckless as to that fact: ground 1 (at [88]).

5 An extension of time in which to appeal should be granted (at [90]).
6 Appeal allowed. Convictions set aside. Parties to be heard on final orders on appeal (at [94]).
Criminal Law Consolidation Act 1935 (SA) s 168, s 169, s 170; Criminal Procedure Act 1921 (SA) s 158; Evidence Act 1929 (SA) s 59J(1)(a); Magistrates Court Act 1991 (SA) s 42(4); Sentencing Act 2017 (SA) s 53, referred to.
Chatterton v Police [2011] SASC 137; R v Forde [1923] 2 KB 400; R v Hamnett [2018] SASCFC 108, (2018) 132 SASR 155; R v Williams [2017] SASCFC 65; Tsavalas v Police [2016] SASC 103, considered.

BLAIR v POLICE
[2022] SASC 132
Single Judge Appeal: Criminal

BLUE J: The appellant Raymond Stewart Blair was convicted by a Magistrate of two counts of serious criminal trespass in a place…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Blair v Police

Details

AGLC: Blair v Police [2022] SASC 132
Case: [2022] SASC 132
Decision Date: 17 November 2022

CaseChat Overview and Summary

In the appeal of Blair v Police, the appellant, Mr Blair, contests his convictions for serious criminal trespass in a place of residence, arguing that the car park where the trespass occurred did not constitute a place of residence under section 170 of the Criminal Law Consolidation Act 1935 (SA), and that his guilty pleas were entered under circumstances that amounted to a miscarriage of justice. The appeal was heard by the South Australian Court of Appeal, which was tasked with determining whether the evidence adduced at the appeal stage could lead to a different verdict and whether the circumstances surrounding the pleas justified a retrial.

The court addressed the legal issues by assessing whether the newly presented evidence could have been produced at trial with reasonable diligence, whether it was credible, and whether it could have reasonably led to a different verdict. The court found that the evidence was credible and that it might have reasonably led to a different verdict, particularly concerning the nature of the trespass location. Additionally, the court concluded that the circumstances in which the guilty pleas were entered involved a miscarriage of justice, necessitating a retrial.

In its ruling, the South Australian Court of Appeal granted the application for an extension of time and set aside Mr Blair's convictions. The matter was remitted to the Magistrates Court to proceed with committal for trial, with an indication that Mr Blair might be willing to plead guilty to lesser charges of serious criminal trespass in a non-residential building. The court provided the parties with an opportunity to consider the future course of the matter before making final orders.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Mr Blair appeals against the convictions on the grounds that:1on the admitted facts he could not have been convicted of serious criminal trespass in a place of residence because the car park in which he trespassed did not comprise a place of residence within the meaning of section 170 of the Criminal Law Consolidation Act 1935 (SA) (the Act) or he did not know and was not reckless as to that fact; [2] and2the circumstances in which his guilty pleas were entered involved a miscarriage of justice by reason of which he should be permitted to withdraw them.[3][2] This is not how ground 1 is worded in the notice of appeal. However, it represents the ground as argued at the hearing of the appeal.[3] This is not how ground 2 is worded in the notice of appeal. However, it represents the ground as argued at the hearing of the appeal.Background In July 2020 the complainant was living in an apartment in a building (the building) containing several apartments. The building has a foyer and a car park on the ground floor. There are two other, relatively small, areas/rooms on the ground floor but they are irrelevant to the appeal. The building has several apartments, being on the first, second and third floors (collectively the upper floors). The evidence was equivocal as to the number of apartments, although there were four numbered letterboxes in a wall at the front of the property. It appears that each floor has at least one and not more than two apartments. The building has a frontage onto the street facing west. The foyer is in the front left-hand (north-western) corner. External entry into the foyer can be made through a glass door on the northern side (door 1) or a door on the western side (door 2). It is possible to walk from the front to the rear of the building using stairs on the northern side of the building. In the eastern wall of the foyer is a lift and a stairwell, which are side by side. Although no evidence was adduced to this effect, it may be inferred that the lift and the stairs go up to the upper floors. In order to operate the lift, it is necessary to have an electronic pass.[4] Although no evidence was adduced of it, it may be inferred that each apartment owner has at least one electronic pass (if not more) which they can use to operate the lift or give to others to do so.[4] This is based on evidence to which the Police objected on the ground it is hearsay. I rule below that the evidence should be admitted for the purpose of ground 2. There is an internal door (door A) which gives access between the foyer and the stairwell. There is an internal door (door B) which gives access between the foyer and the car park. The car park is to the east of the foyer and is much larger than the foyer. Evidence was not adduced of the number of car park spaces in the car park but photographs tendered indicate that there are at least eight spaces. Vehicular access for the car park is achieved through a roller door in the eastern wall of the building (the roller door). There is an external pedestrian door (door 3) immediately to the south of the roller door that gives pedestrian access for the car park shown in the photographs but no evidence was adduced concerning it. There is a second external pedestrian door (door 4) in the northern wall of the building that gives pedestrian access for the car park. Door 4 and door 1 are both in the northern wall of the building, with door 4 being east of the door 1.

Evidence

Evidence Before The Court

On 24 June 2022 Mr Blair’s solicitors filed a notice of appeal against those two convictions.The evidenceAffidavits and oral evidence Mr Blair tendered two affidavits. I received an affidavit sworn by Mr Blair on 24 August 2022 subject to an objection by the Police that the evidence does not meet the test for reception of new evidence on appeal (the fresh evidence objection). Mr Blair also gave oral evidence in chief and was cross-examined by counsel for the Police. Although the objection was expressed to apply to the whole of Mr Blair’s affidavit and there was no explicit objection to his oral evidence, my understanding is that the objection is confined to Mr Blair’s evidence insofar as it is relevant to the question whether the objective and mental elements of serious criminal trespass in a place of residence existed. My understanding is that it does not apply to his evidence for example about the charges and his guilty pleas. My understanding is that it applies to both his affidavit evidence and his oral evidence. I received an affidavit sworn by Andrew Graham on 29 August 2022 subject to the same fresh evidence objection. I received paragraph 9 subject to an additional, hearsay, objection. Mr Graham is Mr Blair’s solicitor and appeared at the hearing of the appeal as his counsel. The Police tendered three exhibits. I received an affidavit affirmed by the complainant on 13 August 2020 being her police statement, excluding the last 22 words of paragraph 2. I also received the Facts of Charge dated 13 August 2020 and the Certificate of Record in relation to the Magistrates Court proceeding.Ruling on objections Under subsection 42(4) of the Magistrates Court Act 1991 (SA), this Court may, if the interests of justice so require, re-hear any witnesses or receive fresh evidence. The criterion for admission of evidence on appeal that was not adduced at first instance is the “interests of justice”. On an appeal against a conviction after trial governed by section 158 of the Criminal Procedure Act 1921 (SA), the test for reception of evidence not adduced at trial was stated by the Full Court in R v Williams[5] in the following terms:[5] [2017] SASCFC 65.An appeal court can receive evidence (fresh evidence) not led at trial in order to assess whether the failure of the trial court to receive that evidence resulted in a miscarriage of justice. In assessing whether a miscarriage of justice has occurred, an appeal court is to have regard to three main considerations as stated by the High Court in Gallagher v The Queen:The first of these, that the conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial…Two other matters that should be taken into consideration are whether the evidence is apparently credible (or at least capable of belief) and whether, if believed, the evidence might reasonably have led the jury to return a different verdict. Therefore there are three main considerations to consider when deciding whether a miscarriage of justice has occurred because evidence is now available that was not given at trial:1Whether the evidence now relied upon could have been produced at trial with reasonable diligence.2 Whether the evidence is apparently credible or at least capable of belief.3Whether if believed, the evidence might reasonably have led the jury to return a different verdict.[6][6] At [69]-[70] per Lovell J (with whom Peek and Blue JJ agreed). (Footnote omitted)

Decision

Reasons for decision

In the circumstances, it is appropriate to grant the application for an extension of time.Conclusion Mr Blair has established that the circumstances in which his pleas of guilty to the two counts of serious criminal trespass in a place of residence were entered involved a miscarriage of justice. His convictions based on those pleas must be set aside. Subject to the following observations, the matter must be remitted to the Magistrates Court to proceed to committal for trial and, if committed for trial, to proceed to a trial in the District Court. On the hearing of the appeal, Mr Blair indicated that he is willing to plead guilty to two counts of serious criminal trespass in a non-residential building in lieu of his original guilty pleas. He further indicated that he does not seek to disturb the sentence that was imposed, noting that he has already fully served the term of imprisonment imposed. On the hearing of the appeal, counsel for the Police indicated that, if the appeal were to be allowed and the matter remitted to the Magistrates Court, instructions would be sought on whether the Police would accept a plea of guilty to two counts of serious criminal trespass in a non-residential building. I will give the parties the opportunity to consider the future course of the matter before making final orders. I will then hear the parties on the final orders that are sought.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.