Bray v Police - [2005] SASC 270

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BRAY v POLICE
Judgment of The Honourable Justice Gray
22 July 2005
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY - GENERAL PRINCIPLES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MATTERS CONNECTED WITH CONDUCT OF DEFENCE - LEGAL REPRESENTATION
Appeal against conviction and sentence - appellant pleaded guilty before Magistrate to two counts of assault - appellant convicted - compensation order made - appeal lodged out of time - extension of time in which to appeal sought.
Discussion of principles regarding withdrawal of guilty pleas - consideration of absence of legal representation for an accused in criminal proceedings - consideration of appeal against penalty.
Application for extension of time to appeal refused.
Criminal Law Consolidation Act 1935 (SA) s 39(1), referred to.
Meissner v The Queen (1995) 184 CLR 132; Marchando (2000) 110 A Crim R 337; Cooling v Steel (1971) 2 SASR 249; Platcher v Joseph [2004] FCAFC 68; MacPherson v The Queen (1981) 147 CLR 512; R v Grey [2001] SASC 428; House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321, considered.

BRAY v POLICE
[2005] SASC 270
Magistrates Appeal
GRAY J
Introduction

This is an appeal against conviction and sentence.
Lawrence Howard Bray, the appellant, was charged that on 14 June 2004 at Hayborough he assaulted Jean Pearce contrary to section 39(1) of the Criminal Law Consolidation Act 1935 (SA). He was further charged that on the same date and place he assaulted David Pearce contrary to the same section.
The matters first came before the Magistrates Court on 1 November 2004. On that occasion the hearing was adjourned for a pre-trial conference. On 8 December 2004, at the pre-trial conference, as recorded on the court file, Mr Bray was told that it was in his interests to obtain legal advice. It was also noted that Mr Bray admitted to kicking David Pearce but that he claimed to have acted in self-defence. Prosecution statements were provided to Mr Bray. A trial date was set.
On 9 February 2005 the matter came on for trial. An affidavit of the police prosecutor, Peter John Fuss, sets out what occurred:
Prior to the trial being called on, I had discussions with the appellant, the appellant’s wife and an acquaintance of the appellant. During these discussions the appellant indicated that he wished to plead guilty to the charges. I advised the appellant that if he entered guilty pleas the respondent would seek convictions for the offences and ask for compensation in the amount of $378.00 for damage to the victim’s glasses and witness fees for attending for the trial this date [sic]. The appellant advised me that he agreed with this…

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 Bray v Police

Details

AGLC: Bray v Police [2005] SASC 270
Case: [2005] SASC 270
Decision Date: 22 July 2005

CaseChat Overview and Summary

In the case of Bray v Police, the appellant, Mr Bray, had pleaded guilty to two counts of assault before a Magistrate and was subsequently convicted. A compensation order was also made. Mr Bray then lodged an appeal against his conviction and sentence, which was out of the usual time limit for such appeals. In response, he sought an extension of time to appeal. The legal issues before the court were whether the appeal should be allowed despite being lodged late, whether the absence of legal representation for Mr Bray at the original proceedings warranted a different outcome, and whether there was any merit in the grounds of appeal he proposed.

The court considered the principles concerning the withdrawal of guilty pleas and the significance of legal representation in criminal proceedings. It noted that while Mr Bray was unrepresented at the original trial, this did not necessarily mean that the appeal had merit. The Crown's counsel did not oppose an extension of time if there was any substance to the appeal, but argued that since the appeal had no prospects of success, it should not be granted. The court examined the proposed grounds of appeal and concluded that none of them had any substance. The appeal was essentially without merit.

The court determined that the appeal should be dismissed and that an extension of time should not be granted. It reasoned that if there were any merit in the appeal, an order granting an extension would be appropriate, but since there was none, such an order should be refused. The court held that if an extension had been granted, it would have been appropriate to dismiss the appeal outright due to its lack of merit. Therefore, the appeal was dismissed, and the original conviction and sentence remained intact.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

If there were merit in the appeal an order granting an extension of time would be appropriate. As Mr Bray was unrepresented, counsel for the Crown did not oppose this approach. However, it was submitted that as the appeal had no prospects of success, an extension should not be granted.Conclusion This is a case where there is no substance to any of the proposed grounds of appeal. In the circumstances an order extending time should be refused. Were an extension granted, it would be appropriate to dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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