MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - OTHER PARTICULAR CASES
CRIMINAL LAW - EVIDENCE - CREDIBILITY - EVIDENCE IN CONTRADICTION
COURTS AND JUDGES - COURTS - OTHER MATTERS - AMICUS CURIAE
CRIMINAL LAW - EVIDENCE - HEARSAY - PARTICULAR MATTERS - OTHER STATEMENTS
MAGISTRATES - COMMENCEMENT OF PROCEEDINGS - DUPLICITY, AMBIGUITY AND UNCERTAINTY - PARTICULAR CASES - OTHER CASES
COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - REASONABLE APPREHENSION OF BIAS GENERALLY
This is an appeal against conviction imposed by a Magistrate.
The appellant was charged with aggravated assault, contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA), in respect of an incident on 26 December 2018. The complainant lived in a caravan on a property owned by his mother. His mother and the appellant were domestic partners.
On the prosecution case, police attended at the property in relation to an allegation of theft against the complainant. The complainant’s evidence was that his mother told him it was not safe for him to be there and that he should go to his father’s house. He said he did not want to go. The defence case was that the complainant's mother had told him to leave. The complainant's evidence was that approximately an hour later, following a verbal exchange between the appellant and the complainant in the caravan, the appellant grabbed the complainant by the throat, pushed him against a microwave and turned him around. The complainant then fell towards the open door of the caravan. The complainant gave evidence that the appellant then straddled the complainant and started punching him.
The appellant, in his record of interview, said that following the appellant grabbing the complainant by the throat, the complainant hit the appellant in the back of the head, that they fell out of the door and that punches were exchanged. The complainant’s mother’s evidence was also that the complainant had hit the appellant two or three times in the head. The appellant relied on the defences on removing a trespasser and self-defence.
The appellant was not legally represented for the beginning part of the trial. He requested an adjournment which was rejected by the Magistrate. The barrister who was later briefed as counsel for the appellant at trial then made an application to appear as amicus curiae. The Magistrate refused the application on the basis that he would not allow ‘amicus to assist as de facto counsel in a trial’. The Magistrate commenced the trial, heard evidence-in-chief, then adjourned for counsel to cross-examine the complainant at a later date.
Held, allowing the appeal on Grounds 2.1 and 8, and dismissing the appeal on Grounds 1, 2.3, 4, 5, 6:
1. The Appellant’s conviction…
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.
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Details
AGLC
Brook v Police [2020] SASC 131
Case
[2020] SASC 131
Decision Date
CaseChat Overview and Summary
The appellant, Brook, appealed against his conviction and sentence in the Magistrates Court of South Australia, which was heard by the Supreme Court of South Australia. The appellant was convicted of assault occasioning actual bodily harm and common assault against Connor. The appeal was based on several grounds, including the sufficiency of the evidence, the assessment of the witnesses, and the admissibility of hearsay evidence.
The legal issues that the court had to decide included whether the evidence was sufficient to support the appellant's conviction, whether the magistrate erred in the assessment of the witnesses, and whether the hearsay evidence was admissible. The court also had to consider whether the magistrate was biased or whether there was a reasonable apprehension of bias.
The court found that the magistrate had erred in the assessment of the witnesses, particularly in relation to the hearsay evidence given by Connor. The court also found that the magistrate had failed to properly consider the defences raised by the appellant. The court concluded that these errors gave rise to a substantial miscarriage of justice, and that the appeal should be allowed on Ground 2.1 and Ground 8. The conviction was quashed, and the matter was remitted for retrial before a different magistrate.
The final orders of the court were that the appeal be allowed on Ground 2.1 and Ground 8, the conviction be quashed, and the matter be remitted for retrial before a different magistrate.
Orders
Orders of the court
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Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The prosecution called Connor and two police officers as witnesses. Also in evidence were photographs of Connor taken after the incident, a statement of agreed facts, a recording and transcript of the appellant’s record of interview and statements of other police officers.The evidence of Connor Connor gave evidence to the effect that during the day, the appellant had come to get him and said, ‘The police are here to talk to you’. He then spoke with the police out the back about his father’s accusation of theft as the appellant waited inside the house. Connor told the police that he had had nothing to do with it and that they were welcome to search the caravan. The police had a look around and said that they might contact him later down the track.[2][2] T 9.10-10.3. Connor then gave evidence that as the police left, the appellant came back out and spoke to him, saying words to the effect that he wanted him to be the ‘gray man’ and that he didn’t want Connor to be seen in the house ‘and stuff like that’.[3][3] T 10.30-34. He said that he then went back to his caravan and locked the door. He sent a message to his mum saying that he felt unsafe. His mum replied that she knew that would happen and that it would not be safe for him to be in the house at the time.[4][4] T 11.35-12.2. At this point, the Magistrate interrupted the examination-in-chief, to warn Connor against giving hearsay evidence. His Honour said:[5]You can tell us what you heard as far as you can remember, but I do not want you to say what other people say, do you understand.[5] T 12.6-8. The Magistrate went on to say that Connor should only say what he heard exactly. In response to that, Connor answered:[6]My mum said, ‘You are not safe there’ and that it would be safer at my father’s house. She would be home in 40 minutes to talk to me and yes, that’s about it, she came home, spoke to me, saying that I needed to go to my fathers, it’s not safe for me here …[6] T 12.15-19. The examination-in-chief continued and the police prosecutor then in recapping, said:[7]QI’ve understood that your mum’s - once she’s home, she’s then come to speak to you.AYes, she spoke to me about – knocking on the caravan door and she said it was her and I unlocked it and come in and she’s like, ‘It’s not safe for you here, you go to your father’s house. Grab you stuff, pack up and go’ and me saying, ‘I don’t want to go, me and dad have just had an argument and the police came by and all this, because me and my dad aren’t on good terms, so I moved out’ …[7] T 13.8-17. It is apparent from this evidence that notwithstanding the Magistrate’s original warning, Connor continued to give hearsay evidence in so far as these exchanges went to the truth of what his mother was telling him about it not being safe for him to be at the house. Connor said that after his mother left the caravan, he locked the door and lay on his bed. About 20 minutes later he heard the sliding door at the back of the house open. He heard the appellant yelling. The appellant then started slamming on the caravan door, telling him to unlock it. He unlocked the door and the appellant asked why he was not going to his dad’s. Connor said that he did not want to go. The appellant then grabbed him by the throat and pushed him against the microwave.[8][8] T 15.3-13.
Decision
Reasons for decision
That conclusion depended on a characterisation of her evidence that was factually wrong.[207] Ground 8 is established.[207] See Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 (Brennan, Gaudron and McHugh JJ); Fox v Percy (2003) 214 CLR 118 at 128, [28]-[29] (Gleeson CJ, Gummow and Kirby JJ).Conclusion The respondent submitted that the evidence of Connor and the admissions in the record of interview made the prosecution case overwhelming.[208] However, the strength of the prosecution case was necessarily dependent upon a proper consideration of the defences raised and a correct approach to assessment of the witnesses. The errors in these regards gave rise to a substantial miscarriage of justice.[208] T 20.7. I allow the appeal on Ground 2.1 and Ground 8. I quash the conviction and remit the matter for retrial before a different Magistrate.