Collie v Police

Case [2013] SASC 15

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

COLLIE v POLICE

[2013] SASC 15

Reasons for Decision of The Honourable Justice Nicholson

11 February 2013

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - OTHER OFFENCES

EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - ONUS OF PROOF

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - GENERALLY

Appeal against a decision of a magistrate finding the appellant guilty of the offence of administering a prescription drug to her four year old son, for whom the drug had not been lawfully prescribed, contrary to s18(1d) of the Controlled Substances Act 1984 (SA). The appellant asserted that the Magistrate erred in admitting various aspects of the evidence, and that the finding of guilt is unsafe and unsatisfactory and cannot be supported having regard to the evidence.

Held: appeal allowed and the conviction quashed.

Magistrates Court Act 1991 (SA) s42; Controlled Substances Act 1984 (SA) s18, referred to.
Police v Collie Magistrate’s Reasons delivered 24 October 2012; Peacock v The King [1911] HCA 66, (1911) 13 CLR 619; Barca v R [1975] HCA 42, (1975) 133 CLR 82; Plomp v The Queen [1963] HCA 44, (1963) 110 CLR 234; Thomas v The Queen [1960] HCA 2, (1960) 102 CLR 584; Rowland v Police [2001] SASC 179, (2001) 79 SASR 569; Allison v Police [2005] SASC 447; Taylor v Hayes (1990) 53 SASR 282; R v Cosford and McDonald-Smith [2007] SASC 147; Shepherd [1990] HCA 56, (1990) 170 CLR 573; Weissensteiner v R (1993) 178 CLR 217; Azzopardi v R (2001) 205 CLR 50; R v Nguyen (2010) 242 CLR 491; R v Abrahamson (1994) 63 SASR 139; Andrews v The Queen (1968) 126 CLR 198; Gerakiteys v The Queen (1938) 153 CLR 317; DPP (Nauru) v Fowler (1984) 154 CLR 627, considered.

COLLIE v POLICE
[2013] SASC 15

Magistrates Appeal

NICHOLSON J.

Introduction

  1. This is an appeal from a decision of a magistrate finding the appellant guilty of the offence of administering a prescription drug to another person for whom that drug had not been lawfully prescribed, contrary to s18(1d) of the Controlled Substances Act 1984 (SA).

  2. As the Magistrate, in his reasons for judgment, correctly observed, “the events of 28 February 2009 were a tragedy for Sarah Collie and her family”.

    At around 9.20am that day Stephen Collie, the father of Sarah Collie went to his daughter’s home.  There was no response to his knock on the front door and so he used his own key to gain entry to the house.  Inside he found his daughter lying on the floor of the lounge room.  She was incoherent and physically incapable of standing.  Mr Collie then…

Continue reading Collie v Police

Sign in free to access the full text

Details
AGLC
Collie v Police [2013] SASC 15
Case
[2013] SASC 15
Decision Date

CaseChat Overview and Summary

The case of Collie v Police involves an appeal by the appellant, Sarah Collie, against her conviction for manslaughter. The dispute pertains to the death of her young son, Thomas, and the circumstances surrounding it, including the administration of drugs and the events leading up to his death. The case was heard in the Supreme Court of South Australia. The primary legal issues the court had to address were whether there were any errors in the Magistrate's reasoning process and whether the evidence was sufficient to support the conviction of the appellant. The court also had to determine if the conviction was unsafe and unsatisfactory, necessitating a retrial or an acquittal.

The court conducted an independent review of the evidence and found several errors in the Magistrate's reasoning process. The court concluded that the evidence provided by the Crown, which suggested that Collie administered drugs to her son to calm him, was speculative and did not sufficiently support a conviction. Furthermore, the court noted that the presence of the drugs in the child's system, while concerning, did not conclusively prove that they were the cause of death. The court acknowledged the stress Collie was under due to custody issues but found that this factor alone was insufficient to establish motive or intent.

Having reviewed the evidence afresh, the court determined that it could not support a conviction. The court emphasised the importance of considering the jury's role in determining guilt or innocence and the advantage they had in seeing and hearing the witnesses. The court concluded that the conviction was unsafe and unsatisfactory, leading to the decision to set aside the conviction and enter an acquittal. The court also considered the need for any other consequential orders and invited submissions from the parties on this matter.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The appeal lies to this court pursuant to s42 of the Magistrates Court Act 1991 (SA). The court has a duty on the hearing of such an appeal to conduct an independent review of the evidence. An appeal may be allowed even in the event that there is no overt error apparent on the face of the reasons given by the Magistrate.[10]That is not to say that if a Magistrate gives convincing reasons, apparently free from error, this Court may be reluctant to substitute its own views. But it must do so if it comes to a different view of the case after making an independent review of the evidence. The question on the hearing of an appeal from a Magistrate is not whether there was material upon the basis of which it was open to the Magistrate to reach the conclusion which he or she did. On the contrary, the question is whether or not, having reviewed the evidence for itself, while making due allowance for the advantage held by the Magistrate in seeing and hearing the witnesses, this Court is satisfied that the judgment under appeal is correct.[11] [10] Rowland v Police [2001] SASC 179, (2001) 79 SASR 569 at [36]; Allison v Police [2005] SASC 447 and Taylor v Hayes (1990) 53 SASR 282 at 289-292. [11] Rowland v Police at [37]-[38].Brief Summary of the Evidence led by the Police In the following sub-paragraphs I have taken advantage of the submission of the Crown in paragraph [2] of its Written Summary of Argument. What follows is a summary of evidence not the Magistrate’s findings of fact.(i)The deceased child was the son of the appellant and her estranged partner, Thomas Wilson. The relationship between she and Wilson had been a violent one and she had taken out a restraining order against him.[12](ii)Prior to the 28 February 2009 the appellant had not complied with orders allowing Wilson access to the deceased. He sought orders in the Federal Magistrates Court. That court ordered access to recommence, beginning on the day of the deceased child’s death, 28 February 2009.[13](iii)On the morning of 28 February the appellant’s father attended her home intending to accompany her and the deceased on the access visit. He knocked on the front door and when there was no answer unlocked the front door with a key and entered. He found his daughter on the floor and apparently unable to talk. He found his grandson, the deceased, lying on a bed in another room apparently dead. He then made a telephone call for an ambulance. [14](iv)Ambulance officers upon attendance found upon examination of the deceased child that rigor mortis had set in and there was an extensive degree of post mortem lividity (blood pooling) evident. As a result of these observations they made no effort to resuscitate the child. [15] When police arrived at the scene it was observed that the rear door was deadlocked and the house secure with no sign of a forced entry.[16](v)On a coffee table in a room at the appellant’s home police took possession of an empty container which had contained a prescription drug, temazapam, along with a number of other drugs including promethazine.[17] Temazapam had been prescribed for the appellant on 12 February 2009.[18](vi)Upon post mortem examination, the deceased was found to have the drugs temazapam and promethazine in his system.[19] Following a blood test of the appellant upon her admission to hospital on 28 February, an analysis disclosed that she had the drugs temazapam and promethazine in her blood.[20](vii)The level of temazapam and promethazine in the system of the deceased child was consistent with a therapeutic dose in an adult and indicated that the deceased child was exposed to about one dose (one dose being one tablet) of each drug. Death was probably not caused by the ingestion of the drugs, but by another contributing agent, such as accidental or deliberate asphyxiation or by natural disease. Both drugs were likely to produce significant sedation and could easily have caused the deceased child to go to sleep.[21](viii)After the appellant was admitted to hospital at Mt Gambier a patient history was taken from her. She informed the doctor taking the history that she had a very stressful last week owing to custody issues and she had heard that she could possibly lose custody of her son. Because of that she had felt depressed and anxious.[22][12] Three statements of the appellant, exhibit P25; Exhibit P26; Exhibit P27.[13] Evidence of Thomas Wilson at TS 42-43; Exhibit P30 order of Federal Magistrates Court of 25 February 2009.[14] Evidence of S Collie, transcript at 67-73.[15] Exhibit P3 statement of witness Adkins; Exhibit P 4, statement of witness Sparks.[16] Buller at transcript 128-129.[17] Witness Rickard at transcript 106; 108-109.[18] Witness Viki at transcript 97.[19] Toxicology report of H. Felgate of 27 April 2009 - exhibit P 16. [20] Toxicology report of H. Felgate of 8 May 2009 - exhibit P 21.[21] Statement of Professor Olaf Drummer of 14 July 2009 - exhibit P 17.[22] Evidence of witness Kumbhare at transcript 141.The Magistrate’s reasons

Decision

Reasons for decision

NICHOLSON J
In any event, as earlier indicated, the evidence that Sarah Collie was under stress and anxious about an impending contact visit, said by the Crown to provide a “motive” or reason for calming Thomas with a tablet of Temazepam (and a tablet of Phenergan) borders on speculation and, in my view, added only marginally to the Crown case.Conclusion I have identified errors in the Magistrate’s reasoning process. Ordinarily, this would be sufficient to quash the conviction and direct a retrial. However, after having considered all of the evidence afresh I have also reached the view that it cannot support a conviction and that the conviction must be seen as unsafe and unsatisfactory. I have done so after bearing in mind the approach to be taken by an appellate court when addressing a submission that a verdict was unsafe and unsatisfactory. The required approach was reaffirmed by Hayne, Crennan, Kiefel and Bell JJ in R v Nguyen.[45]The task of an appellate court in considering whether a verdict of guilty returned by a jury “should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence” was described by this Court in M. As four members of the Court pointed out in M, the conclusion that a verdict should be set aside on this basis is often expressed in terms of the verdict being “unsafe or unsatisfactory”, “unjust or unsafe” or “dangerous or unsafe”. The question for the appellate court is one of fact.“[T]he question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”As the plurality in M went on to point out:“But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”[45] (2010) 242 CLR 491 at [33] (citations omitted). In these circumstances the proper disposition of the appeal, as counsel for the Crown conceded, is to set aside the conviction and enter an acquittal.[46] I so order. I will hear the parties on the need for any other consequential orders.[46] See, for example, Andrews v The Queen (1968) 126 CLR 198; Gerakiteys v The Queen (1938) 153 CLR 317; and DPP (Nauru) v Fowler (1984) 154 CLR 627.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

Full text does not contain this section.