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…
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CaseChat Overview and Summary
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.
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