Hirst v Police (No 3) - [2006] SASC 45

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HIRST v POLICE (NO 3)
Judgment of The Honourable Justice Gray
3 February 2006
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - POINTS AND OBJECTIONS NOT TAKEN BELOW - WHEN ALLOWED TO BE RAISED ON APPEAL
Application for leave to appeal to Full Court against a decision dismissing an appeal against conviction by a magistrate - application made well out of time - consideration of whether leave should be granted notwithstanding extensive delay in bringing the application - consideration of whether applicant should be permitted to argue new grounds of appeal before the Full Court - extension of time within which to bring the application for leave to appeal granted - application for leave to appeal on specified grounds granted.
Criminal Law Consolidation Act 1935 (SA) s 56, s 58; Summary Offences Act 1953 (SA) s 7, s 23(1)(a), referred to.
Hirst v Police [2005] SASC 201; Hirst v Police (No 2) [2005] SASC 480; Pantorno v The Queen (1989) 166 CLR 466; Fingleton v The Queen (2005) 216 ALR 474; University of Woollongong v Metwally (No 2) (1985) 59 ALJR 481, considered.

HIRST v POLICE (NO 3)
[2006] SASC 45
Magistrates Appeal
GRAY J
Application for leave to appeal
Introduction

This is an application for leave to appeal to the Full Court against a decision dismissing an appeal against conviction.
The applicant, Benjamin Craig Hirst, faced trial[1] on four counts of indecent assault,[2] five counts of indecent behaviour[3] and one count of gross indecency.[4] The appellant pleaded not guilty to all counts and a joint trial proceeded before a magistrate. The issue at trial was identification.
[1] Other charges were not pursued.
[2] Contrary to section 56 of the Criminal Law Consolidation Act 1935 (SA).
[3] Contrary to section 23(1)(a) of the Summary Offences Act 1953 (SA) (Offence now contained in section 7 of the Summary Offences Act).
[4] Contrary to section 58 of the Criminal Law Consolidation Act.
On 1 December 2004, the appellant was convicted of four counts of indecent assault, four counts of indecent behaviour and one count of gross indecency. The magistrate found the appellant not guilty of the remaining count of indecent behaviour.
On 2 June 2005, I delivered my reasons for judgment dismissing the appeal.[5] The circumstances of the offending, the conduct of the trial and the case for both the prosecution and defence are discussed in detail therein.
[5] Hirst v Police [2005] SASC 201.
The appeal centred on the photographic identification evidence led at trial. Counsel for the applicant contended that the evidence should have been excluded as a matter of discretion. The principal contentions were that there had not been an identification parade, that police offered no explanation as to the removal of a photograph from photo-boards prepared by the police for use in the photographic identification process, and that the removal of the photograph caused prejudice affecting the evidence of many of the complainants.
In deciding to dismiss the appeal, I determined that the magistrate had correctly directed himself as to the dangers associated with photographic identification evidence, and that the ultimate findings made by the magistrate were open on the evidence.
On 28 September 2005, a subpoena was issued, directed to the Commissioner of South Australia Police, requiring his attendance to give evidence and produce documents said to be relevant to the application for leave to appeal. The Commissioner applied to set aside the subpoena on the basis that the applicant could not establish that the evidence sought would materially affect the outcome of the appeal and that the terms of the subpoena were too broad, both geographically and temporally. Having heard submissions from both parties as well as from the Solicitor-General on behalf of the Commissioner, I concluded that the subpoena should be set aside.[6]
[6] See my reasons for judgment: Hirst v Police (No 2) [2005] SASC 480.
Extension of Time
This application for leave to appeal was brought some months out of time, and was accordingly accompanied by an application for an extension of time within which to apply for leave to appeal. Such extensive delay is particularly of concern in a matter of this nature, given that, if the applicant is successful and a re-trial is ordered, there could be prejudice to the administration of justice. Moreover, the consequences for the applicant, a young man in his twenties, are serious. If the convictions stand, not only will he have a criminal record but he could also face a term of imprisonment.
It transpired that the underlying cause of the delay in bringing the application for leave extended from what can only be described as grave incompetence on the part of the applicant’s solicitor. In his affidavit lodged accompanying the application for leave to appeal, the applicant’s solicitor deposed to the following:
I was not present at the argument of the appeal before His Honour Gray J on 18^th February 2005 or on 2^nd June 2005 when his Honour delivered Judgment and dismissed the appeal. …
The matter of sentencing submissions had been adjourned by [the magistrate] until 20^th July 2005 at Holden Hill Magistrates Court. At some time prior to that date I have become aware that the appeal had been dismissed. I can not now remember when or how I learned that.
On 20^th July 2005 I attended at Holden Hill Magistrates Court. I there informed the applicant and his family for the first time that the appeal had been dismissed. It was quite clear that they were unaware of this until then and they were upset at the news. The matter was then called on in Court and sentencing submissions were adjourned until Tuesday 30^th August 2005.
Mr Hirst, the father of the applicant, continued to contact me about the case. The family were unhappy with the situation. My diary indicates that on 10^th August 2005 I had a meeting at my office with the Hirst family including the applicant. We further discussed the dismissal of his appeal and our options generally for taking a further appeal. … It was quite clear that the applicant was maintaining that he was not guilty.
The solicitor then describes how, during the month of August 2005, he contacted Queens Counsel and sought advice in relation to this matter. He then went on to say:
At the time of the delivery of Judgment by Justice Gray on 2^nd June 2005 I generally understood that one could appeal further to the Full Court but I was unaware of the provisions of the Supreme Court Rules in relation to leave to appeal from such a Judgment. I did not give the applicant or his family any advice about such matters. My attention was first drawn to these matters by [Queens Counsel] when he advised me in the circumstances referred to above. …
In the circumstances I ask that my client not be prejudiced since he is in no way responsible for any delay that has occurred and has always unequivocally maintained his innocence.
In a further affidavit sworn on 18 October 2005, the applicant’s solicitor, in response to a query from the Court, explained why he took so long to inform the applicant of the outcome of his appeal:
…I acknowledge that the Court correctly and in a timely fashion informed my office of the intended date on which the Judgment of Justice Gray was to be handed down and that a copy of the said Judgment dismissing the appeal was provided to my office.
I acknowledge that it was my important responsibility to inform the applicant of the above matters in a timely fashion and I failed to do so. Without seeking to excuse the failure, I can only say that I had intended to inform the applicant but simply forgot to do so and that this was due to the pressure of other business at the time. My failure was one of inadvertence and certainly not a positive decision not to inform him.
The applicant’s matter was only next drawn to my attention on 20^th July 2005 when I saw that it was in my diary for that day at Holden Hill Magistrates Court. At some time that morning, I can not say precisely when, I realised that I have forgotten to inform my client of the decision in the appeal. I then informed him at the Holden Hill Magistrates Court.
I apologise to the court and to the applicant and I ask that my client not be prejudiced since he is in no way responsible for any delay that has occurred.
In these circumstances, an extension of time is appropriate. It would be unfair to prejudice the applicant further by the conduct of his legal adviser. Counsel for the respondent did not oppose an extension of time.
Leave to Appeal
The court’s practice has been to grant leave to appeal only if a question of general principle arises. Usually, the court considers also whether there is reason to doubt the correctness of a decision under consideration. However, in the end the court must act as the interests of justice may require.
In Pantorno,[7] the High Court considered whether a ground of appeal not previously agitated could be raised before it on appeal. Mason and Brennan JJ observed:[8]
Grounds of appeal are not narrowly construed but they nevertheless confine the issues which, in any curial proceeding of an adversarial kind, define what the court is to decide. Even when a point which counsel seeks to argue in this Court for the first time can be seen to fall within the grounds of appeal to an intermediate appellate court, this Court will not give effect to the point if evidence could have been given in the court below which by any possibility could have prevented the point from succeeding…but, absent such a possibility, there are some cases in which it is expedient in the interests of justice to allow a point to be raised on appeal which was not argued in the court below.
[7] Pantorno v The Queen (1989) 166 CLR 466.
[8] Pantorno v The Queen (1989) 166 CLR 466 at 475.
Remarks of similar effect were made by Kirby J in Fingleton:[9]
Both in civil and criminal appeals, this Court has repeatedly refused leave to parties to propound new points, argued for the first time before it. Commonly, this refusal is justified by the "elementary rule of law that a party is bound by the conduct of his or her case".[10] That rule has been stated by six Justices of the Court in University of Wollongong v Metwally (No 2), in the context of civil proceedings, in clear terms:[11]
Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
In criminal appeals, this rule is tempered, to some extent, by the ordinary focus of the governing legislation upon issues of "miscarriage of justice" and by the heightened concern of the law with questions of liberty, status and reputation typically involved. Nonetheless, the law's proper anxiety about finality of litigation, and about the costs and other burdens that litigation occasions, focuses attention, in cases such as the present, upon the question of whether "special" or "exceptional" circumstances are shown that warrant a belated reliance on a new point. This obstacle cannot be brushed aside. Consistency in the treatment of appeals requires that this issue be given specific attention in this appeal. Obviously, it would be quite wrong if it were thought that an ordinary prisoner would be refused leave to raise a point but a former judicial officer would be given special treatment.
[9] Fingleton v The Queen (2005) 216 ALR 474 at [147]-[148] (footnotes original).
[10] Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 at 875 [44]; 179 ALR 321 at 331. See also University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1 at 8–9.
[11] University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; 60 ALR 68 at 71.
Proposed Grounds of Appeal
At the hearing of the application for leave, it became apparent that the respondent would not oppose a grant of leave to appeal on the following grounds:
1.Both the learned Magistrate and the learned Appellate Judge erred in their approach to assessing the cogency of the disputed photographic identification and its ability to support the convictions in that their Honours:
1.1     Treated the evidence led in relation to any one particular Count as cross-admissible on all other Counts.
1.2     Treated one disputed identification as being capable of being taken into account when assessing the probative weight of a different disputed identification.
1.3     Treated circumstantial evidence as being capable of being taken into account when assessing the probative weight of a disputed identification.
1.4     Wrongly found that one and the same person committed each of the offences when a correct approach to the evidence required a finding that it was not capable of establishing that proposition.
1.5     Failed to have adequate regard to matters calling into question the accuracy of the photographic identifications and finding that the evidence proved the respective charges beyond reasonable doubt and/or that the convictions were safe and satisfactory.
Essentially, the applicant seeks to argue before the Full Court an entirely new case to that which was argued at the first instance of the appellate process. The cross-admissibility of the evidence was not directly raised as an issue at the hearing before me. Nor was I informed that, some two weeks prior to the commencement of the trial, the applicant’s solicitor had applied to the magistrate for severance of the counts, which application was refused by the magistrate. In his affidavit sworn on 23 September 2005, the applicant’s solicitor deposed to the following:
At all times the applicant has instructed me, and continues to instruct me, that he is not guilty of each of the charges on the basis that he was not the man who performed any of the acts described by any of the complainants.
I was not assisted or advised by counsel at any stage before or during that trial.
About two weeks before the trial, I made an application for severance of all of the Counts on the basis that none of the evidence was cross-admissible. The prosecution opposed my application and made an application that the ten charges contained in one information … be tried together with a further two charges in another information….
Both my application and the prosecution application were heard at the same time on 15^th July 2004 by a Magistrate … There was oral argument only and no written submissions. His Honour then immediately delivered Judgment and refused my application for severance and granted the prosecution application. I understood His Honour to be ruling that all of the evidence was cross-admissible. His Honour did not provide any written reasons. … I subsequently proceeded with the trial on the basis that all of the evidence had been determined to be cross-admissible. I did not consider the possibility of re-litigating that matter before [the trial magistrate].
Upon being convicted the applicant again instructed me that he was innocent and that he wished to appeal.
I was able to obtain legal aid for an appeal but I did not consider myself capable of preparing or presenting an appeal. I had previously had great difficulty in finding anyone who was prepared to act as counsel in an appeal of any complexity on legal aid.
The applicant’s solicitor describes how he obtained counsel to act in this matter and then continues:
I had no input into the preparation of the appeal other than to provide …papers. I had only one conference with [counsel] and that was for about half an hour or a little longer. [Counsel] prepared a draft appeal form including the Grounds of Appeal and then it was typed up by my secretary.
I did not advise the applicant of his right to request the Appellate Judge to refer the matter to the Full Court for hearing or any significance attaching to a failure to make such request. I assumed that the appeal would be heard before a single Judge and the applicant was not given any opportunity to given any instructions in relation to that matter.
[Counsel] did not have any conference or any contact with the applicant prior to the argument of the appeal.
At no time did I inform [counsel] about the matter of the prosecution application or my application for severance referred to [above]. I did not give him a copy of [the court record] or any other document which referred to either of those applications. I believe that His Honour Gray J was therefore not informed about the matter. I now appreciate that I should have informed [counsel] of this matter and that Gray J should have been informed because the matter of cross admissibility of evidence was important.
…
In so far as matters now sought to be put on behalf of the applicant have not previously been put, this has been as a result of inadvertence and certainly not the result of a deliberate decision for tactical or forensic purposes.
Given that the applicant was, on his solicitor’s own admission, inadequately advised, and given that, until recently, this matter, both at trial and on appeal, was conducted seemingly without a sufficient understanding of important issues, in my view a grant of leave to appeal is appropriate. It does appear that points that should have been argued and developed at trial and on appeal were, on legal advice, not advanced. In the interests of justice, the applicant ought to be given the opportunity to advance those points before the Full Court.
The grounds of appeal relating to the cross-admissibility of the various counts and the relevance of the circumstantial evidence to the photographic identifications do raise important issues of general principle. Although cross-admissibility was not particularised as a ground of appeal in the original notice of appeal, the magistrate did raise the issue of the verdicts being unsafe and unsatisfactory, which led me to consider the issue of the cross-admissibility of the evidence in limited reports.[12]
[12] Hirst v Police [2005] SASC 201 at [52]-[59].
Conclusion
Leave to appeal to the Full Court on the grounds set out above is granted.