Holder v Lewis

HOLDER & ORS v LEWIS
[2003] SASC 397
Full Court: Doyle CJ, Prior and Perry JJ

DOYLE CJ: This appeal raises some issues about the scope of the right of appeal conferred by s 42 (1) of the Magistrates Court Act 1991 (SA) (“the MCA”).
Earlier proceedings
Mr Holder, Mrs Holder and Karen Louise Pty Ltd (I will refer to them collectively as “the defendants”) were each charged on a complaint with an offence against the Fisheries Act 1982 (SA). They pleaded not guilty.
At the commencement of the trial, counsel for the defendants challenged the admissibility of evidence of admissions made by Mr Holder to a fisheries officer. The challenge was based on the ground that Mr Holder had not been appropriately cautioned before making the admissions. The Magistrate heard evidence relevant to the challenge. The Magistrate ruled that the evidence would not be admitted.
Counsel for the complainant did not call the other evidence on which she relied. It is not clear whether she formally closed her case. Counsel for the defendant submitted that there was no case to answer. As was inevitable, the Magistrate dismissed the complaint.
The complainant appealed to this Court against that order. The only ground of appeal was that the Magistrate was wrong to exclude the evidence of the admissions.
The Judge who heard the appeal admitted further evidence on the hearing of the appeal. The evidence, tendered by the complainant, consisted of six documentary exhibits. They prove that the company held a fishery licence, that Mr Holder was registered as Master on its licence, that Mrs Holder was the sole director of the company and that an Aquatic Reserve had been proclaimed in certain waters. They also proved that none of the defendants held a particular type of permit under the Fisheries Act.
The Judge also allowed the complainant to tender two maps. These were tendered as an aid to understanding the evidence, and were of no particular significance.
On appeal, in support of the application to call further evidence, the complainant relied on the fact that at trial the prosecutor had intended to tender this evidence at the outset, had deferred doing so at the suggestion of the Magistrate when the admissibility of the admissions was challenged, and then failed to do so after the admissions were excluded. An affidavit from the prosecutor stated that she thought it was futile to continue with the case once the admissions were excluded. The material had been provided to the defence before the trial began.
The evidence admitted on appeal was needed to establish a case to answer against the company and Mrs Holder. It was not needed to establish a case to answer against Mr Holder.
The Judge held that the Magistrate was wrong to exclude the evidence of the admissions. The admissions were sufficient to establish a case to answer against Mr Holder. The admissions and the further evidence were sufficient to establish a case to answer against Mrs Holder and against the company. The Judge remitted the matter to the Magistrates’ Court for trial. He granted leave to appeal to the defendants.
Before the Full Court the defendants did not challenge the decision that the evidence of admissions by Mr Holder should have been admitted. The defendants argued that the Judge should not have admitted the further evidence on appeal. They also argued that the appeal was, in substance, an appeal against an interlocutory judgment (the decision to exclude the evidence of the admissions) and accordingly was incompetent. They also argued that, in the circumstances, the decision of this court in Police v Dorizziand Others [2002] SASC 356; (2002) 84 SASR 416 required the Judge to dismiss the appeal.
The further evidence
The Judge was correct to admit the further evidence.
Power to admit the evidence is conferred either by s 42 (4) of the MCA or by r 97.18(b) of the Supreme Court Rules 1987 (SA).
Section 42(4) of the MCA provides:
“(4)On an appeal, the appellate court may, if the interests of justice so require, re-hear any witnesses or receive fresh evidence.”
That provision should not be read as permitting the receipt of evidence only if that evidence was not reasonably available at trial. In some circumstances that will be the only justification for admitting further evidence. However, that should not be taken as the sole basis for the admission of evidence on appeal. I consider that the provision should be read as enabling the court to permit an oversight or mistake of the kind in question here to be corrected, if that can be done without causing any injustice. In short, the reference to “fresh evidence” should not be read as referring only to one kind of evidence of the type that appeal courts are often able or empowered to receive.
In any event, r 97.18(b) of the Supreme Court Rules gives the court hearing such an appeal power to receive “further evidence upon any question of fact”. There is no doubt that that provision empowered the Judge to receive the evidence.
The decision to admit the evidence was appropriate. The evidence in question was not contentious. The prosecutor should have tendered the evidence. Her decision not to do so was a mistake, partly attributable to the Magistrate’s intimation that the tender of the material should be deferred until after he had dealt with the challenge to the admissibility of the evidence of admissions by Mr Holder. The decision was not made for tactical reasons or to secure some advantage. Counsel for the defendants was well aware of the evidence, a copy of the documents having been provided to him. The interests of justice support allowing the mistake to be remedied. To do so is not unfair to the defendants, even though it assists the prosecution on the appeal. Even if the evidence had been tendered, the complaints would have been dismissed, and so the failure to tender the evidence has not affected the outcome of the proceedings in the Magistrates’ Court.
For all those reasons, the challenge to the Judge’s decision on this point fails.
Competence and disposition of the appeal
Sub-sections (1) and (1a) of s 42 of the MCA provide as follows:
“(1) A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).
(1a) An appeal does not, however, lie against an interlocutory judgment given in summary proceedings.”
The MCA does not define “an interlocutory judgment”.
The Magistrate’s decision to exclude the evidence was not “an interlocutory judgment”. It was not a judgment at all. It was simply a ruling made in the course of the trial: see Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126; Dorizzi at [19]. The appeal to the Supreme Court was an appeal against the Magistrate’s order dismissing the complaint. That order is a judgment given in the action. The appeal was competent.
The appeal being competent, and the Judge having decided that the evidence of the admissions was wrongly excluded, the appeal against the dismissal of the complaint against Mr Holder had to succeed. If the excluded evidence had been admitted, he had a case to answer.
The excluded evidence and the further evidence received on appeal together established a case to answer against Mrs Holder and against the company. However, it is true that, if only the excluded evidence was taken into account, there was no case to answer against either of them. In that respect it is correct to say that the Magistrate’s decision to dismiss the complaint against Mrs Holder and against the company was correct, even if his decision on the excluded evidence was reversed.
On appeal Mr Edwardson, counsel for the defendants, argued that in these circumstances the decision in Dorizzi dictated that the appeal should be dismissed.
I do not accept that submission. Dorizzi does not so decide, and is clearly distinguishable from the present case.
In Dorizzi the Magistrate excluded important prosecution evidence. The prosecutor then closed his case without tendering any other evidence. The charges were dismissed, as was inevitable. The case was one in which the prosecutor had intended to call a lot of additional evidence. He took the course he did to enable him to test the Magistrate’s ruling on appeal, without calling the substantial additional evidence. That additional evidence was not tendered on appeal, or even identified except in a very general way: Dorizzi at [30]. Importantly, even if the excluded evidence had been admitted, that evidence did not create a case to answer: Dorizzi at [25]. In Dorizzi the decision to dismiss the charges could not be said to be wrong, even if the excluded evidence was admitted.
In those circumstances it was not appropriate to allow the appeal, even if the decision to exclude the evidence was wrong. The Magistrate’s decision remained a correct decision on the material before him. It remained correct on the material before the Supreme Court in Dorizzi. The case had become, in substance, an attempt to correct a ruling on admissibility of evidence in the course of the trial, in isolation from a consideration of the prosecution case as a whole: Dorizzi at [20].
The present case is quite different. As I have pointed out, if the excluded evidence was admitted, Mr Holder had a case to answer. The complaint against him should not have been dismissed. The further evidence, coupled with the excluded evidence, established that Mrs Holder and the company had a case to answer. Accordingly, the decision to dismiss the charges against them was shown to be wrong.
I mention that before this Court there were some submissions on the question of whether Mr Holder’s admissions bound the other two defendants. It is not necessary to say anything about that matter.
Before this Court the Solicitor-General acknowledged that there was some other evidence that the prosecutor intended to lead at trial, that had not been identified in other than a general way. In the circumstances of the present case that is not a reason to dismiss the appeal. Whether that fact is a reason to dismiss an appeal is something to be decided in all the circumstances of the particular case. I agree with the observations made in Dorizzi to the effect that the Court will not encourage the fragmentation of trials, or their interruption, by allowing appeals that are intended to test decisions made in the course of the trial while the trial is proceeding: see Dorizzi at [21] – [24]. The Court takes that approach even though it realises that sometimes it would be convenient if the correctness of a particular ruling could be determined without the prosecutor having to present the balance of the prosecution case.
But in the present case, as I have explained, the wrongful exclusion of the evidence of admissions gave rise to a dismissal of the complaint that is wrong in law on the material before the appellate court. Accordingly, it was proper to allow the appeal. The fact that the prosecutor had not tendered all of the prosecution evidence, even allowing for the further evidence admitted on appeal, was a matter that called for consideration. But in the present case the decision under appeal has been shown to be erroneous, and there are no considerations of a practical nature or based on fairness to the defendants that make it inappropriate to dispose of the appeal. The Judge was correct to act as he did. In that context it is pertinent to point out that even if the remaining (and unidentified) prosecution evidence had been tendered, there would have been no case to answer at the conclusion of the prosecution case, and so the outcome of the proceedings in the Magistrates’ Court would have remained the same. There was no connection between the excluded evidence and the unidentified and untendered evidence that makes it inappropriate to consider the appeal without having the untendered evidence before the Court.
For those reasons the decision in Dorizzi is distinguishable. The principles stated in Dorizzi do not require that the appeal be dismissed. The decision by the Judge was correct.
I mentioned earlier that it is unclear whether the prosecutor actually closed her case before the Magistrate. If she did, it will be a question for the Magistrate who hears the trial to decide whether the prosecutor should be permitted to present evidence not previously presented. However, for what it is worth, I can see no reason why that should not be permitted, even if the prosecutor did close her case.
Conclusion
I would dismiss the appeal by the defendants.
Prior J: I agree.
Perry J: I agree that the appeal should be dismissed for the reasons given by Doyle CJ.

[2003] SASC 397

5 December 2003