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…

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: [2006] SASC 45
Decision Date: 3 February 2006

CaseChat Overview and Summary

In Hirst v Police (No 3), the applicant sought leave to appeal to the Full Court against a decision dismissing an appeal against his conviction by a magistrate. The appeal was made well out of time, raising questions about whether the application should be allowed despite the delay and if new grounds could be presented before the Full Court.

The legal issues before the court involved whether leave to appeal should be granted despite the late application and whether the applicant should be permitted to argue new grounds of appeal before the Full Court. Specifically, the applicant sought to argue the cross-admissibility of various counts and the relevance of circumstantial evidence to photographic identifications, which were not raised in the original notice of appeal.

The court considered the importance of the issues raised and granted an extension of time within which to bring the application for leave to appeal. The court held that the grounds relating to the cross-admissibility of the various counts and the relevance of circumstantial evidence to photographic identifications raised important issues of general principle. Therefore, the court granted leave to appeal to the Full Court on the specified grounds.

The court concluded that leave to appeal to the Full Court on the grounds set out was granted, allowing the applicant to present his arguments on the cross-admissibility of evidence and the relevance of circumstantial evidence. This decision underscores the importance of the issues raised, even in the context of a late application and the introduction of new grounds.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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