Cosenza v Graham (No 2) - [2019] SASC 217

Supreme Court of South Australia

(Magistrates Appeals: Civil)

COSENZA v GRAHAM & ANOR (No 2)

[2019] SASC 217

Judgment of The Honourable Justice Parker

23 December 2019

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE

Permission to proceed with interlocutory appeal against decision of a magistrate to set aside subpoena.
The appellant instituted a private prosecution in the Magistrates Court alleging that he was assaulted by Senior Constable Graham in April 2013. The appellant’s complaint about the officer’s alleged conduct was investigated by the Police Ombudsman. The complaint was not substantiated. The appellant issued two subpoenas to the Commissioner of Police. The second subpoena sought the production of the investigation file conducted by Police in regard to the complaint. Both subpoenas were set aside by the Magistrate on the basis that the subpoenaed documents did not meet the legitimate forensic purpose test. Only the setting aside of the second subpoena is appealed.
The appellant contends that the Magistrate erred by:
1. failing to consider a legitimate forensic purpose of the subpoena material as proving both the identity of the defendant and the actus reus of the offence;
2. holding that it was “not on the cards” and there was no reasonable possibility that the subpoena material would materially assist the prosecution case; and
3. failing to consider a further legitimate forensic purpose of the subpoena material, being a comparison of the subpoena material to other sworn versions of the events given by Senior Constable Graham. Differences in the sworn versions of events may go to proof of lies or a consciousness of guilt.
Two questions arise. First, whether there are “special reasons” to grant permission to proceed with the interlocutory appeal. Secondly, in considering whether special reasons exist, it is relevant to consider the merits of the appeal.
Held per Parker J (refusing permission to appeal):
(1) Senior Constable Graham admitted in his affidavit dated 28 September 2015, and which was provided to the appellant, that he was the officer involved in the incident and that he had taken a mobile phone from the hands of the appellant and handcuffed him. The appellants first contention cannot succeed.
(2) It is mere speculation on the part of the appellant to suggest that Senior Constable Graham’s affidavit sworn 26 November 2015 is false and that he must have provided information to investigators that was materially different to the material in that affidavit. The appellant third contention is without merit.
(3) It is not “on the cards” or a reasonable possibility that the subpoenaed documents will materially assist the prosecution. The appellant is seeking to engage in a fishing expedition. There is no legitimate forensic purpose in seeking to obtain documents so as to see whether they may be relevant.
(4) There is nothing out of the ordinary about this case which would bring it within the “special reasons” test.
(5) There is nothing in the case to distinguish it from the general run of cases…

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 Cosenza v Graham (No 2)

Details

AGLC: Cosenza v Graham (No 2) [2019] SASC 217
Case: [2019] SASC 217
Decision Date: 23 December 2019

CaseChat Overview and Summary

Cosenza v Graham (No 2) is an appeal from a decision of a Magistrate in the Magistrates Court of South Australia. The appellant, Cosenza, sought to appeal against a decision which dismissed his application to set aside a default judgment entered against him by the respondent, Graham, in a debt recovery action. The matter came before the Supreme Court of South Australia where the appeal was heard by the Honourable Justice Gray.

The appeal was based on the premise that the Magistrates Court had erred in dismissing the application to set aside the default judgment as the appellant had a valid defence to the debt recovery action. The legal issue before the court was whether the Magistrates Court had applied the correct legal principles in dismissing the appeal. Specifically, the court had to consider whether the appellant had established a bona fide defence to the action and whether there were any circumstances that justified the setting aside of the default judgment.

The Supreme Court of South Australia held that the Magistrates Court had erred in dismissing the appeal. The court found that the appellant had established a bona fide defence to the debt recovery action and that there were circumstances which justified the setting aside of the default judgment. The court held that the appellant had demonstrated that he had a valid defence to the action and that there were exceptional circumstances which warranted the setting aside of the default judgment. The court further held that the Magistrates Court had not considered all of the relevant evidence and had failed to apply the correct legal principles in dismissing the appeal.

The Supreme Court of South Australia allowed the appeal and remitted the matter back to the Magistrates Court for rehearing. The court further ordered that the appellant's costs of the appeal be paid by the respondent. The court did not make any orders as to the costs of the original proceeding.

Orders