Groom v Police

[2013] SASC 49

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

GROOM v POLICE

[2013] SASC 49

Judgment of The Honourable Justice Sulan (ex tempore)

26 March 2013

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF DEFENCE COUNSEL

Appeal against conviction - appellant found guilty of assault - the Magistrate accepted the evidence of the complainant - information on which to cross-examine the complainant which may have had relevance to the reliability of the complainant's evidence was not provided to counsel, through no fault of the appellant.

Held:  Trial counsel had not made an informed assessment of the information and had, therefore, not cross-examined the complainant in respect thereof - the respondent conceded that the trial had miscarried - appeal allowed - matter remitted to the Magistrates Court for retrial before another magistrate.

GROOM v POLICE
[2013] SASC 49

Magistrates Appeal: Criminal

1. SULAN J:             The appellant was charged with the following offences. On 11 December 2011 at Henley Beach South it is alleged that he contravened a term of an intervention order. Further, it is alleged that on 11 December 2011 at Henley Beach South he assaulted Sarah Butler.

2. The alleged offending arose out of a dispute between the appellant, Mr Groom, and his former domestic partner, Sarah Butler. On 23 August 2012, a Magistrate found the appellant not guilty in respect of the first count but guilty of the assault charge.

3. The appellant was represented by counsel before the Magistrate. Ultimately the decision of the Magistrate turned on his assessment of the appellant’s evidence and the truth and accuracy of the complainant, Ms Butler’s, evidence. Although another witness, who is a friend of Ms Butler’s, was called by the prosecution the Magistrate concluded that his evidence was unreliable. The Magistrate accepted Ms Butler’s evidence and was satisfied beyond reasonable doubt that the appellant had made contact with her by pushing her in the shoulders with both hands, causing her to move backwards. That was the extent of the assault.

4. The appellant denied making contact with Ms Butler. The central issue in the case revolved around the credibility of Ms Butler and the credibility of the appellant. The Magistrate was satisfied beyond reasonable doubt that Ms Butler’s evidence was both reliable and honest. The appellant appeals and challenges the finding of the Magistrate.

5. Ground 3 of this appeal is that the Magistrate erred in finding the victim, Ms Butler, to be a truthful and accurate witness. The appellant was unrepresented at the appeal. During a number of directions hearings prior to the hearing of the appeal, it became clear that the appellant was alleging that his counsel at trial had failed to cross-examine Ms Butler about allegations she had made in an affidavit, which the appellant alleges were false.  In her affidavit, Ms Butler alleged that the appellant had assaulted her on a previous occasion whilst they were in her car.  The appellant submits that there is proof that the allegations can be proved to be false.

6. I do not intend to relate in detail the arguments of the appellant, other than to observe that it is alleged that Ms Butler swore the affidavit in support of an intervention order.

7. The appellant had informed his solicitor of the basis upon which he suggests it can be established the affidavit is false. The solicitor was acting for the appellant in respect of a number of matters. When the allegations of falsity supported by documents were provided to her she considered the information as relevant to another of the other matters with which she was dealing. She placed the documents on a file which was not the file dealing with the assault charge. In preparing for the trial she did not inform counsel of the documents, or the appellant’s instructions in respect of them.

8. Affidavits from the solicitor and counsel were tendered before me, which confirm that counsel was not aware that there was material which might support the allegation that the complainant was, at the very least, unreliable in respect of allegations she had made to support the making of the intervention order.

9. Counsel did not make a fully informed decision whether to use that material in cross-examining the complainant. The solicitor was aware of the material but did not realise its significance when briefing counsel. The fact that she did not realise its significance is understandable, having regard to the fact that she was dealing with a number of matters. She had been provided with voluminous material by the appellant with instructions with respect to a number of matters. It is understandable that the existence of the material did not come to mind when she was preparing for the trial.

10. Counsel for the respondent quite properly conceded the appeal. He accepted that counsel for the appellant was not aware of the material, nor was he fully informed of the appellant’s instructions regarding the affidavit. He accepted that counsel for the appellant at trial did not make an informed assessment of the material or whether to use it in cross-examining the complainant at the trial on the assault charge.

11. In the circumstances, counsel for the respondent accepted that the trial had miscarried. He conceded that the appeal should be allowed and the matter remitted to the Magistrates Court for retrial. In my view his concession was proper.

12. Given the matters to which I have referred, the appeal is allowed, the case is remitted to the Magistrates Court for retrial before another magistrate.

13. I order the respondent to pay the appellant’s costs fixed at $100.