Cuthbert v Police No. Sccrm-02-1795 - [2003] SASC 55

CUTHBERT v POLICE
[2003] SASC 55
Magistrates Appeal

BESANKO J: This is an appeal pursuant to s 42 of the Magistrates Court Act 1991.
The appellant was charged with the assault of another female on 25 May 2002 at Gawler. Section 39(1) of the Criminal Law Consolidation Act 1935 (“CLCA”) provides that the penalty for the offence is a term of imprisonment not exceeding two years. The offence is a summary offence.
The appellant appeared before the Magistrates Court sitting at Elizabeth on 12 November 2002. She was unrepresented. She pleaded guilty to the charge. The Magistrate recorded a conviction and imposed a fine of $400, together with other costs.
The appellant appeals to this Court, and the appeal is based on three grounds. First, it is argued that the sentencing process had miscarried because the Magistrate erred in failing to advise the appellant of her right to seek a penalty without conviction pursuant to s 16 of the Criminal Law (Sentencing) Act 1988 (“CLSA”). Secondly, it is argued that the penalty is manifestly excessive having regard to the penalty imposed on another participant in the assault. Thirdly, it is argued that this Court should receive fresh evidence, and that having regard to that fresh evidence the penalty is manifestly excessive.
I received a number of affidavits on the hearing of the appeal. The affidavits were received without objection. The first affidavit is an affidavit of the appellant sworn on 20 December 2002. That affidavit deposes to matters relevant to the hearing on 12 November 2002, and matters which were not put before the Magistrate. Secondly, I received an affidavit from a Mr Andrew Halford who is a police prosecutor, and who represented the police at the hearing before the Magistrate. That affidavit deposes to matters relevant to the hearing before the Magistrate. Thirdly, I received an affidavit from Mr Peter Christopher Ryan who is the solicitor for the appellant. Mr Ryan attached to his affidavit a letter from the appellant’s employer to the effect that a conviction for assault would impede the appellant’s ability to seek and gain promotion with her employer.
After hearing submissions from counsel for each party, I made an order that the appeal be allowed and that the conviction recorded by the Magistrate be set aside. I made an order that the fine of $400 imposed by the Magistrate be set aside. I further ordered that pursuant to s 16 of the CLSA a penalty be imposed, being a fine of $300. I made an order that the respondent pay the appellant’s costs of the appeal fixed at $165. I indicated that I would deliver my reasons at a later date. My reasons follow.
The Facts as put to the Magistrate
The Magistrate advised the appellant of her right to obtain legal representation. I reject any suggestion to the contrary. The appellant told the Magistrate that she wished to proceed with the matter. The charge was read and a guilty plea…

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

Case: [2003] SASC 55
Decision Date: 21 February 2003

CaseChat Overview and Summary

The case of Cuthbert v Police No. Sccrm-02-1795 involves an appeal by the appellant, Cuthbert, against her conviction for assault by the Magistrate. The appellant had entered a guilty plea to the charge of assaulting the victim, resulting in her being fined $400. The appeal was based on the alleged failure of the police prosecutor to provide adequate advice to the appellant regarding her legal options. The appeal was heard in the Supreme Court of South Australia.

The primary legal issue before the court was whether the Magistrate's failure to advise the appellant of her right to seek legal representation before entering a guilty plea constituted a breach of natural justice. Additionally, the court had to consider whether the penalty imposed by the Magistrate was manifestly excessive in light of the fresh evidence presented, which included the history of the conflict between the appellant and the victim.

The court found that the Magistrate did not breach natural justice by failing to advise the appellant of her right to seek legal representation, as the appellant had initially indicated a desire to proceed without legal representation. However, the court did find that the penalty imposed by the Magistrate was manifestly excessive when considering the fresh evidence, which provided a broader context of the appellant's actions and the history of the conflict with the victim. The court subsequently set aside the original penalty and imposed a new penalty of a $300 fine under s 16 of the Criminal Law Consolidation Act.

The court ordered that the original conviction be set aside, the fine of $400 be set aside, and a new penalty of a $300 fine be imposed. Furthermore, the respondent was ordered to pay the appellant's costs of the appeal, which were fixed at $165. The court's decision reflects a careful consideration of the evidence presented and the principles of natural justice in the context of criminal proceedings.

Orders

Orders of the court

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Background

Background to the litigation

After hearing submissions from counsel for each party, I made an order that the appeal be allowed and that the conviction recorded by the Magistrate be set aside. I made an order that the fine of $400 imposed by the Magistrate be set aside. I further ordered that pursuant to s 16 of the CLSA a penalty be imposed, being a fine of $300. I made an order that the respondent pay the appellant’s costs of the appeal fixed at $165. I indicated that I would deliver my reasons at a later date. My reasons follow.The Facts as put to the Magistrate The Magistrate advised the appellant of her right to obtain legal representation. I reject any suggestion to the contrary. The appellant told the Magistrate that she wished to proceed with the matter. The charge was read and a guilty plea was entered. The prosecutor made submissions to the following effect.“Your Honour, on Saturday 25 May 2002, at the Southern Hotel, Gawler, the defendant and two other females, including Kyan Burns, assaulted the victim. The victim stated that at about 10:30PM both she and a friend were coming out of the toilets when she was approached by three females including the defendant. After words were exchanged, the victim was assaulted by the girls, including the defendant who pulled her by the hair. The victim fell to the ground and Burns assaulted her further. The victim blacked out and was taken to the Gawler Health Service by ambulance, where she spent the night. She complained of a severe headache, damaged front teeth and general soreness. When interviewed by police, the defendant made full and frank admissions, stating that she ‘pulled the victim by the hair because it was a fight and she had a fair bit to drink and it all got out of hand’.” The prosecutor told the Magistrate that the defendant had no prior criminal history. The prosecutor said in his affidavit that he is unable to recall if any further conversation took place between the Magistrate and the appellant after the facts were alleged. Earlier that day a charge laid against Kyan Burns was heard. Ms Burns pleaded guilty. She was convicted and a fine of $500 was imposed. Some time after the appellant’s matter was dealt with, she asked for the matter to be called back on and adjourned. The Magistrate refused to adjourn the matter and advised the appellant that the correct procedure was to lodge an appeal. In her affidavit, the appellant states that the police prosecutor told the Magistrate when her matter was called on that it was the same matter as previously (ie., the charge against Ms Burns). The Magistrate said that there would be a lesser fine as Ms Burns had prior convictions. The appellant told the Magistrate that the victim had approached her, but she did not tell him of the history of the matter. She admitted pulling the victim’s hair. The Magistrate asked the appellant if she was employed, and the appellant told the Magistrate that she was a Checkout Operator. The appellant states that she became very distressed after her matter had been dealt with and asked for it to be called on again. It was called on again and she then asked for a lawyer. The Magistrate told her that the matter had been finalised and that it was up to her if she wanted to engage a lawyer for the purpose of lodging an appeal.The Alleged Failure to Advise

Evidence

Evidence Before The Court

If consideration is restricted only to the material before the Magistrate, I do not think the penalty he imposed was manifestly excessive. It may be that the penalty imposed on Ms Burns was particularly lenient, but I do not think that the disparity is such that the penalty imposed on the appellant was manifestly excessive. Nor was it manifestly excessive when regard is had to the penalty provided in the section, and the nature and circumstances of the offence as known to the Magistrate.Fresh Evidence The appellant had, prior to the matter in question, never received a summons to attend court. She is nineteen years of age and she resides with her parents. She is employed by Woolworths at a supermarket in Gawler. She has been employed by Woolworths for the last three years. She is a Checkout Operator, and she is now fourth in charge on the floor. Prior to the commission of the offence the appellant had known the alleged victim for a number of years. They had been good friends for approximately three years. The appellant terminated the friendship late in 2001. There were then a series of incidents whereby the victim allegedly threatened the appellant. Property was stolen and damaged. I will not set out the details. Before the assault, the appellant was confronted by the victim who abused her. There was pushing and shoving, and the appellant pulled the victim’s hair. A third person kicked the alleged victim in the face and loosened a tooth. The appellant subsequently spoke to a local police officer about whether she could lay a complaint about the way in which she had been treated. The police officer told her that she should plead guilty and not seek legal advice. He told her that the circumstances of the kick were unrelated, and that that matter would not be put before the Court. The appellant did not tell the Magistrate about the history of the matter because of what she had been told by the police officer. A letter from the appellant’s supervisor at Woolworths states that if a criminal conviction for assault remains on the appellant’s record, then that would impede her ability to seek or gain promotion within the company. In R v Brain (1999) 74 SASR 92 the Court of Criminal Appeal considered an appeal against sentence. Fresh evidence was put before the Court by consent. Doyle CJ considered what approach the Court should take in deciding whether to allow the appeal having admitted fresh evidence (at 105 – 107). The Chief Justice said:“In the present case I am satisfied that, if the sentence were considered afresh, the further material warrants the imposition of the lesser sentence than that imposed. I am also satisfied that if the further material had been before the sentencing judge, at the least he would have fixed a lower non-parole period than that that he fixed. I am satisfied, if it be necessary, that in the light of the further material it can be said that the original sentence is, to that extent, manifestly excessive. Accordingly, it is appropriate for the Court to intervene. The question of the precise basis upon which the Court acts can be left for another day.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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