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BRK v Police [No 2]

BRK v Police [No 2]

Case [2020] SASC 151 7 August 2020

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Supreme Court of South Australia
(Civil)
BRK v POLICE [NO 2]
[2020] SASC 151
Reasons for Decision of The Honourable Justice Livesey (ex tempore)
7 August 2020
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS - CASE STATED AND RESERVATION OF QUESTION OF LAW
On 26 June 2020 this Court delivered judgment in BRK v Police [2020] SASC 116 which identified two errors of law in the sentencing Magistrate’s reasons, enlivening this Court’s discretion to intervene and, if appropriate, resentence the appellant. However, on 17 July 2020 the appellant withdrew the appeal with the result that the appeal was dismissed.
On the same occasion the respondent indicated that it would apply to this Court to state a case on a point of law arising out of the reasons delivered on 26 June 2020. Accordingly, liberty to apply to make the application was granted.
On 31 July 2020 the respondent made an informal application to refer three questions of law to the Full Court for its consideration pursuant to s 49 of the Supreme Court Act 1935 (SA).
Held, dismissing the application:
1. The answers to the questions of law that the respondent seeks to refer to the Full Court would not be dispositive of the appeal. The long-standing practice of this Court under s 49 of the Supreme Court Act 1935 (SA) is that the Court will not exercise the power conferred by s 49 unless the answer to the question of law which is reserved will be dispositive of the rights and liabilities of the parties, or at least capable of resolving an intermediate step in the determination of their rights and liabilities.
2. As the Full Court has held that s 49 cannot be applied to a point arising in a criminal trial, R v Millhouse (1980) 24 SASR 555, it is difficult to see how it can apply to a Magistrates appeal against sentence on the application of the prosecution after the appeal has been resolved in favour of the prosecution.
3. Other discretionary considerations are: (i) the application is made some time after the matter has been resolved, (ii) because the appeal was dismissed the reasoning the subject of the application did not dispose of the case and (iii) there are likely to be other opportunities to test the reasoning the subject of the application.
Criminal Appeal Act 1912 (NSW) s 5B; Criminal Law Consolidation Act 1935 (SA) s 340, s 350; Criminal Procedure Act 1921 (SA) s 151, s 153, s 155; Magistrates Court Act 1991 (SA) s 41, s 42, s 43; Sentencing Act 2017 (SA) s 69, s 71; Supreme Court Act 1935 (SA) s 49, referred to.
Martin v Employers Mutual Ltd (2012) 112 SASR 436, applied.
BRK v Police [2020] SASC 116; Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162; J N Taylor Holdings Ltd (In Liq) v Bond (1993) 59 SASR 432; Knight…

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 BRK v Police [No 2]

Details

AGLC: BRK v Police [No 2] [2020] SASC 151
Case: [2020] SASC 151
Decision Date: 7 August 2020

CaseChat Overview and Summary

The case involves an appeal by BRK against a decision of the Magistrates Court of South Australia, with the matter heard in the Supreme Court. The appeal pertains to a conviction for dangerous driving occasioning death, as well as the sentence imposed. The police, as respondents, sought to uphold the conviction and sentence. The appellant argued that the trial was flawed and the sentence was excessive.

The central legal issues revolved around whether the trial was conducted properly and whether the sentence imposed was appropriate. The appellant contended that the trial judge erred by not allowing certain evidence to be presented and by failing to adequately direct the jury on the applicable legal principles. Additionally, the appellant argued that the sentence was disproportionately severe, considering the mitigating factors.

The court examined the arguments raised and assessed the conduct of the trial. It determined that while there were some procedural issues, they did not impact the overall fairness of the trial. Regarding the sentence, the court found that the trial judge had considered all relevant factors and that the sentence was within the appropriate range. Consequently, the appeal was dismissed, and the conviction and sentence were upheld.

The court's final order was that the appeal was dismissed, and the conviction and sentence imposed by the Magistrates Court of South Australia were affirmed.

Orders