Flavel v Van Reesema - [2005] SASC 418

Supreme Court of South Australia
(Full Court)
FLAVEL v VAN REESEMA
Judgment of The Full Court
(The Honourable Acting Chief Justice Perry, The Honourable Justice Duggan and The Honourable Justice Anderson)
9 November 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
Respondent found guilty of 12 breaches of Companies (South Australia) Code 1981, s 227 and sentenced by magistrate to 24 months imprisonment with non-parole period of 12 months - respondent appealed against sentence and was granted bail pending outcome of appeal - appeal allowed and matter remitted to Magistrates Court for re-sentencing - respondent absconded overseas - magistrate proceeded to sentence the respondent in his absence - upon his return to Australia the respondent applied for the setting aside of the convictions and sentence pursuant to Summary Procedure Act, 1921, s 76A - the applications were dismissed by the Chief Magistrate - respondent appealed to a single judge - single judge allowed the appeal, set aside the sentence of imprisonment and remitted matter to the Magistrates Court for re-hearing - appeal to Full Court - whether single judge erred in finding that the magistrate sentenced the respondent for offences for which he had not been convicted - sentencing remarks of magistrate transcribed after appeal to single judge - indicate respondent sentenced for correct offences - whether transcribed sentencing remarks constituted fresh evidence - appeal allowed and orders made by judge appealed from set aside.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - HEARING IN OPEN COURT AND IN PRESENCE OF ACCUSED
Respondent filed a notice of alternative contention raising question whether magistrate entitled to sentence him in his absence - held magistrate entitled to proceed where respondent had voluntarily absented himself from proceedings.
Companies (South Australia) Code 1981 s 555, s 227(1), s 227(2); Summary Procedure Act 1921 s 62C, s 76A, s 57A; Supreme Court Rules R96C.05, referred to.
R v Jones (No. 2) [1972] 2 All ER 731; R v Rigney (1988) 48 SASR 72; R v Jones (1998) 72 SASR 281, applied.

FLAVEL v VAN REESEMA
[2005] SASC 418
Full Court: Perry A/CJ, Duggan and Anderson JJ

PERRY ACJ. I agree with the order proposed by Duggan J and with his reasons.
DUGGAN J. The history of this matter in so far as it is relevant to the present appeal goes back to 8 February 1988 when, as a result of being convicted of offences against s 555 of the Companies (South Australia) Code 1981 (“the Code”), the respondent was prohibited from being the director of a corporation without leave of the court for a period of five years.
On 8 May 1991 the respondent was found guilty of 12 breaches of s 227(2) of the Code. The charges were laid on separate summonses and alleged that the respondent had acted as a director of certain companies within a period of five years after his conviction for the offences against s 555 of the Code.…

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 Flavel v Van Reesema

Details

AGLC: Flavel v Van Reesema [2005] SASC 418
Case: [2005] SASC 418
Decision Date: 9 November 2005

CaseChat Overview and Summary

In the case of Flavel v Van Reesema, the respondent was found guilty of 12 breaches of the Companies (South Australia) Code 1981, section 227. The respondent was subsequently sentenced by a magistrate to 24 months imprisonment with a non-parole period of 12 months. Upon the appeal against the sentence, the respondent was granted bail pending the outcome of the appeal. The appeal was allowed, and the matter was remitted to the Magistrates Court for re-sentencing. However, before the re-sentencing could take place, the respondent absconded overseas. In his absence, the magistrate proceeded to sentence the respondent, and upon his return, the respondent applied for the setting aside of the convictions and sentence under section 76A of the Summary Procedure Act, 1921. The Chief Magistrate dismissed the applications, leading the respondent to appeal to a single judge, who allowed the appeal, set aside the sentence of imprisonment, and remitted the matter to the Magistrates Court for re-hearing.

The legal issues that arose in this case primarily revolved around the jurisdiction and procedure of the court. The key question was whether the single judge erred in finding that the magistrate had sentenced the respondent for offences for which he had not been convicted. The sentencing remarks of the magistrate were transcribed after the appeal to the single judge, and these indicated that the respondent was indeed sentenced for the correct offences. Another significant issue was whether the transcribed sentencing remarks constituted fresh evidence. This appeal to the Full Court resulted in the appeal being allowed, and the orders made by the judge were set aside.

The Full Court held that the single judge had erred in finding that the magistrate had sentenced the respondent for offences for which he had not been convicted. The Court noted that the sentencing remarks, as transcribed, showed that the respondent was indeed sentenced for the correct offences. Additionally, the Court found that the transcribed sentencing remarks did not constitute fresh evidence, as they were merely a record of what had been said in court. The Court also highlighted the importance of hearing in open court and in the presence of the accused, underscoring the procedural fairness required in such matters. Consequently, the appeal was allowed, and the orders made by the judge were set aside.

Orders