Bollen v Police

Case [2022] SASC 82

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal: Criminal)

BOLLEN v POLICE

[2022] SASC 82

Judgment of the Honourable Justice Kimber 

11 August 2022

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

The appellant appeals against two separate convictions in the Magistrates Court.  The appeals were heard together but are described as ‘SCCRM-22-152’ and SCCRM-22-153’ respectively.  Both appeals were out of time. 

SCCRM-22-152

The appellant was charged with the offence of Failing to Comply with a Bail Agreement contrary to s 17(1) of the Bail Act 1985 (SA). A condition of that agreement was that the appellant would not approach or communicate, directly or indirectly, with a person who also lived the same small town. After a number of appearances in the Magistrates Court and having been in custody for some time, the appellant represented himself and entered a plea of guilty. The appellant was convicted without further penalty. At the time of the plea, the appellant indicated his plea was entered under ‘duress’ and out of ‘convenience’.

The appellant appealed on the following grounds:

1.      The plea was improperly induced and entered under duress;

2.      The Magistrate demonstrated bias;

3.      The appellant was denied the opportunity to present evidence;

4.      The conviction is unsafe.

Held per Kimber J, granting an extension of time but dismissing the appeal:

1.      There was no improper inducement, nor did the appellant establish duress.  The guilty plea was entered freely and in what the appellant thought was in his interests;

2.      There was no bias;

3.      There was no denial of an opportunity to plead not guilty and present evidence at trial;

4.      The conviction is not unsafe.

SCCRM-22-153

Following a trial in the Magistrates Court, the appellant was found guilty of the offence of Aggravated Assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA). The complainant knew the appellant. The complainant alleged the appellant rode a trail bike toward him, stopped and struck the complainant. The grounds of appeal can be broadly characterised as follows:

1.      It was not open for the Magistrate to accept the evidence of the complainant beyond a        reasonable doubt, there was no motive and the complainant was not honest and reliable;

2.      The appellant was denied the opportunity to present evidence, on the basis:

a.the Magistrate showed a demonstrable bias in not allowing the appellant to produce certain evidence; and

b.      the Magistrate declined to hear evidence from certain police officers.

Held per Kimber J, granting an extension of time but dismissing the appeal:

1.      There was no onus upon the prosecution to prove a motive.  It was open to accept the evidence of the complainant beyond a reasonable doubt.

2.      The contention of the appellant the Magistrate showed bias was premised on a complaint the Magistrate denied the appellant the opportunity to lead evidence.  That premise is not established.  In any event, the matters put forward on the appeal do not cast doubt on the verdict.  Although the failure…

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Bollen v Police [2022] SASC 82
Case
[2022] SASC 82
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CaseChat Overview and Summary

In the case of Bollen v Police, the appellant contested two convictions made in the Magistrates Court of South Australia. The first conviction involved a charge of failing to comply with a bail agreement, while the second related to an offence of aggravated assault. The appellant appealed both convictions to the Supreme Court of South Australia, arguing various grounds of error. The court granted an extension of time for the appeals but dismissed the grounds raised. The court found that the appellant's plea of guilty was entered freely and in his perceived interests, without duress or improper inducement. The court further determined that there was no bias demonstrated by the magistrate and that the appellant was not denied an opportunity to present evidence. Regarding the conviction for aggravated assault, the court held that it was open to accept the complainant's evidence beyond a reasonable doubt and that the appellant's contention of bias was unfounded. The court also found that any irregularities in the trial did not result in a miscarriage of justice.

The legal issues in this case primarily revolved around the voluntariness of the appellant's guilty plea and the fairness of the trial process. The appellant argued that the plea was not voluntary and that he was denied the opportunity to present certain evidence, which he believed would have refuted the complainant's allegations. The court examined the circumstances under which the plea was entered and the evidence presented to determine whether the appellant's rights were upheld during the trial. The court's reasoning focused on the appellant's choice to plead guilty and the absence of any procedural errors that would undermine the validity of the convictions. By dismissing the grounds of appeal, the court affirmed the decisions made in the Magistrates Court.

Orders

Orders of the court

The appellant appeals against two separate convictions in the Magistrates Court. The appeals were heard together but are described as ‘SCCRM-22-152’ and SCCRM-22-153’ respectively. Both appeals were out of time.

SCCRM-22-152

The appellant was charged with the offence of Failing to Comply with a Bail Agreement contrary to s 17(1) of the Bail Act, 1985. A condition of that agreement was that the appellant would not approach or communicate, directly or indirectly, with a person who also lived the same small town. After a number of appearances in the Magistrates Court and having been in custody for some time, the appellant represented himself and entered a plea of guilty. The appellant was convicted without further penalty. At the time of the plea, the appellant indicated his plea was entered under ‘duress’ and out of ‘convenience’.

The appellant appealed on the following grounds:

1. The plea was improperly induced and entered under duress;

2. The Magistrate demonstrated bias;

3. The appellant was denied the opportunity to present evidence;

4. The conviction is unsafe.

Held per Kimber J, granting an extension of time but dismissing the appeal:

1. There was no improper inducement, nor did the appellant establish duress. The guilty plea was entered freely and in what the appellant thought was in his interests;

2. There was no bias;

3. There was no denial of an opportunity to plead not guilty and present evidence at trial;

4. The conviction is not unsafe.

SCCRM-22-153

Following a trial in the Magistrates Court, the appellant was found guilty of the offence of Aggravated Assault contrary to s 20(3) of the Criminal Law Consolidation Act, 1935. The complainant knew the appellant. The complainant alleged the appellant rode a trail bike toward him, stopped and struck the complainant. The grounds of appeal can be broadly characterised as follows:

1. It was not open for the Magistrate to accept the evidence of the complainant beyond a reasonable doubt, there was no motive and the complainant was not honest and reliable;

2. The appellant was denied the opportunity to present evidence, on the basis:

a. the Magistrate showed a demonstrable bias in not allowing the appellant to produce certain evidence; and

b. the Magistrate declined to hear evidence from certain police officers.

Held per Kimber J, granting an extension of time but dismissing the appeal:

1. There was no onus upon the prosecution to prove a motive. It was open to accept the evidence of the complainant beyond a reasonable doubt.

2. The contention of the appellant the Magistrate showed bias was premised on a complaint the Magistrate denied the appellant the opportunity to lead evidence. That premise is not established. In any event, the matters put forward on the appeal do not cast doubt on the verdict. Although the failure to call one police officer was an irregularity, there was no miscarriage of justice.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I grant an extension of time but dismiss ground 2.Ground 3 – Denial of opportunity to present evidence contrary to guilt Under this ground the appellant complains the Magistrate did not permit him to submit ‘contradictory and compelling video evidence’. This complaint must also be dismissed once the transcript is considered. Having received a response to his request for an indication of sentence, subsequently pleading guilty and being sentenced, the appellant said - ‘I have compelling evidence to refute that claim, but there is nothing I can do about that now’.[22] The appellant’s comment is only consistent with him having in mind evidence he believed was contrary to guilt on the day of his plea. Nevertheless, the only conclusion open from the transcript is the appellant nonetheless chose to plead guilty. [22] MCWHY-21-246 Transcript of Proceedings, 5 January 2022, pp. 5-6. As for the contention the appellant was not permitted the opportunity to lead this evidence, that also must be rejected. At no point did the appellant ask to put evidence before the Court below and at no point did the Magistrate deny the appellant the opportunity to do so. For reasons already given, what occurred is consistent with the appellant wanting to enter a plea of guilty for reasons he thought in his interests. As for the complaint the Magistrate ‘failed to offer the appellant any alternative solution, such as bail, in order to prepare adequately for his trial’ it was not for the Magistrate to give such advice. For the reasons already given, I am satisfied the plea of guilty was the result of a free choice by the appellant. I grant an extension of time but dismiss ground 3. Ground 4 – Unsafe Verdict As I understood the submissions of the appellant, the particulars of this ground are the matters set out in grounds 1-3. For reasons already given, those grounds are not made out and are dismissed. It is enough to observe I am satisfied the plea of guilty was freely made and entered in what the appellant thought was his own interests. Appeal against conviction – Aggravated Assault (SCCRM-22-153)Overview The offence the subject of this appeal relates to an incident at Iron Knob on 24 June 2020. The circumstances of the alleged offending are as follows. On the prosecution case, Mr Jacobs (the complainant) was away from his home, having taken his dogs for a walk. Having returned to his vehicle at the completion of that walk, the complainant alleged he was standing alongside his vehicle when the offender came towards him on a trail bike. The complainant alleged the offender stopped and then slapped him across the left cheek, causing pain and a bloodied nose. The offender then reached into the complainant’s car, took the keys from the ignition and threw them into the bushes nearby. The offender then ran away. There was no dispute the complainant and the appellant knew each other before the alleged incident. The Trial Immediately before the trial commenced, the appellant’s solicitor was given leave to withdraw. The appellant confirmed he wished to proceed without being represented and the trial took place.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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