Holder v Lewis

Case [2003] SASC 397

HOLDER & ORS v LEWIS
[2003] SASC 397

Full Court:  Doyle CJ, Prior and Perry JJ

  1. 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

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. 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.

  8. 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.

  9. 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.

  10. 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…

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AGLC
Holder v Lewis [2003] SASC 397
Case
[2003] SASC 397
Decision Date

CaseChat Overview and Summary

In the case of Holder v Lewis, the defendants appealed against a decision to admit further evidence in the appeal proceedings. The defendants did not challenge the initial decision to admit the evidence of admissions by Mr Holder. The primary legal issues were whether the Judge was correct to admit the further evidence, and whether the appeal was, in substance, an appeal against an interlocutory judgment, which would render it incompetent. The defendants also argued that the decision in Police v Dorizziand Others required the Judge to dismiss the appeal.

The court found that the Judge was correct to admit the further evidence. The power to admit the evidence was conferred either by s 42(4) of the Magistrates Court Act or by r 97.18(b) of the Supreme Court Rules 1987 (SA). The provision should not be read as permitting the receipt of evidence only if that evidence was not reasonably available at trial. Instead, it should be read as enabling the court to permit an oversight or mistake to be corrected, if that can be done without causing any injustice. The decision to admit the evidence was appropriate, as the evidence in question was not contentious, the prosecutor's decision not to tender the evidence was a mistake, and allowing the mistake to be remedied was supported by the interests of justice.

The court also determined that the appeal was not, in substance, an appeal against an interlocutory judgment, and therefore was not incompetent. The decision in Police v Dorizziand Others did not require the Judge to dismiss the appeal. The court concluded that it would dismiss the appeal by the defendants.

The final orders of the court were to dismiss the appeal by the defendants for the reasons given by Doyle CJ, with Prior J and Perry J concurring.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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”.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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