Burton v Police - [2005] SASC 308

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BURTON v POLICE
Judgment of The Honourable Justice Vanstone
11 August 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
Appeal against findings of guilt of sexual offences by magistrate - complaint that decision unsafe and unsatisfactory - appeal dismissed.
Evidence Act 1934 s 34(i)(6a), referred to.
M v R (1994) 181 CLR 487; R v Corrigan (1998) 74 SASR 454; R v Keyte (2000) 78 SASR 68, considered.

BURTON v POLICE
[2005] SASC 308
Magistrates Appeal: Criminal

VANSTONE J: This is an appeal against findings of guilt by a Magistrate, of six charges of indecent assault committed upon a girl, whom I shall call “E”.
The appellant has not yet been convicted by the Magistrate. His right of appeal is against “any judgment given in the action”: s 42 Magistrates Court Act 1991. The appellant was presented on an information charging a further two counts, those being allegedly committed against E’s sister “H”, but he was acquitted of those counts. E was 11 years of age at the time of the offences and just short of 14 years at the time she gave evidence. The complainant H was about two years younger.
All the charges arose from events during the Easter weekend of 2002. On that weekend E and her sister and parents had travelled from the country and were staying at the home of the appellant and his partner, who was a relative of the family. It was alleged that all the incidents giving rise to the charges occurred in a room used as a bedroom by the sisters, in which was located a computer owned by the appellant and used, during that weekend, by the sisters. It was not suggested by either of the girls that she had witnessed any assault upon the other. Neither girl complained until after their return home and on the following Thursday. There was evidence from the girl’s mother that she had observed some touching of the girls by the appellant which, though not indecent, gave her cause for concern. She thought it was inappropriate.
The appellant was interviewed by police about three weeks after the Easter weekend and denied any offence. A transcript of that interview was before the learned Magistrate. Also before him was a transcript of evidence given by the appellant at a previous trial of the charges. He did not give evidence at the trial from which this appeal arises.
As I read the grounds of appeal they amount to one ground that the findings are unsafe and unsatisfactory, together with particulars of that ground, separated under discrete headings. The various complaints raised do not give rise to any misgivings in my mind about the findings of the Magistrate. Many of the matters agitated are simply arguments on the facts which were, no doubt, made the subject of submissions to the…

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 Burton v Police

Details

AGLC: Burton v Police [2005] SASC 308
Case: [2005] SASC 308
Decision Date: 11 August 2005

CaseChat Overview and Summary

The appeal in Burton v Police was brought by the appellant against findings of guilt of six charges of indecent assault made by a Magistrate. The complainant, a girl referred to as "E", was 11 years old at the time of the alleged offences, which took place over an Easter weekend in 2002. The appeal was based on the contention that the Magistrate's findings were unsafe and unsatisfactory. The appellant was acquitted of two similar charges relating to E's sister, "H". The Supreme Court of South Australia considered the appeal and found that the Magistrate's findings were not in error.

The primary legal issue the court had to decide was whether the Magistrate made any errors in his assessment of the evidence, particularly in relation to the weight given to certain transcripts and the consistency of the complainant's evidence. The appellant argued that the Magistrate failed to adequately consider his denials during a police interview and his previous trial testimony. Additionally, the appellant contended that there were inconsistencies between the complainant's evidence and her sister's, and that the Magistrate erred in not directing himself on the need for corroboration in the absence of which it would be unsafe to convict.

The court examined the Magistrate's handling of the evidence, noting that he appropriately assessed the significance of the appellant's admissions of physical contact with the children during the police interview and his previous trial testimony. The court found that the Magistrate's treatment of the evidence was unexceptional and that he properly evaluated the complainant's evidence, taking into account criticisms raised by the appellant's counsel. The court also held that the Magistrate was not required to direct himself on the need for corroboration, given that there were no special circumstances that would have necessitated such a direction. Therefore, the appeal was dismissed, and the findings of guilt were upheld.

Orders