Jaunay v Police - [2023] SASC 38

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
JAUNAY v POLICE
[2023] SASC 38
Judgment of the Honourable Justice Stein
24 March 2023
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - HEARING - PROCEDURAL FAIRNESS AND NATURAL JUSTICE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
Following a trial in the Magistrates Court, the appellant was found guilty and convicted of the offence of assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA). The appellant was alleged to have assaulted the complainant on 25 October 2013 while on duty as a police officer. The complainant took an audio recording on his mobile phone shortly after the alleged offending. Although the Magistrate found the complainant to be a poor witness, the Magistrate found beyond reasonable doubt that in part of the audio recording the appellant was admitting to the charged offence and convicted the appellant.
The appellant appealed against the conviction on the following grounds:
1.It was not open on the evidence for the Magistrate to return a verdict of guilty.
2.The Magistrate erred in finding the audio recording recorded an admission and failed to afford the appellant procedural fairness.

Held, allowing the appeal, quashing the conviction and remitting the matter for retrial before a different Magistrate:
1.The Magistrate erred in finding beyond reasonable doubt that the words “ya fairy mates” were spoken in the recording and rejecting the possibility any other words were spoken.
2.The Magistrate erred in reasoning that the phrase “belted you one” was only attributable to a blow with the hand and in reaching that conclusion by his personal understanding and observed use of the phrase.
3.The prosecution case was run on the basis the words “belted you up” were spoken in the audio recording and the Magistrate made a factual finding that the words “belted you one” were spoken. That factual finding, together with the Magistrate’s personal understanding of the meaning of the words found to have been uttered, were significant in the Magistrate’s reasoning to guilt. Consequently, in the particular circumstances of the case there was an obligation to afford procedural fairness by giving the parties the opportunity to make further submissions.

Criminal Law Consolidation Act 1935 (SA) ss 20(3); 20(4); Magistrates Court Act 1991 (SA) s 42(1); Supreme Court Criminal Rules 2014 (SA) ch 12A, referred to.
Boyle v The Queen [2022] SASCA 50; Browne v Dunn (1893) 6 R (HL) 67; Fox v Percy (2003) 214 CLR 118; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; Macks v Viscariello (2017) 130 SASR 1; Martin v Department of Transport, Energy & Infrastructure [2010] SASC 141; MDM v The Queen [2020] SASCFC 80; Nathanson v Minister for Home Affairs (2022) 403 ALR 398; R v Hazim (1993) 69 A Crim R 371; R v Singh [2019] SASCFC 51; S, N v Police [2021] SASC 49

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: [2023] SASC 38
Decision Date

CaseChat Overview and Summary

The appeal before the court concerns the conviction of the appellant, Mr Andrew Allan Jaunay, who was found guilty by the Magistrate of assaulting the complainant, Mr Matthew Odgers, on 25 October 2013. The appellant was charged with the offence under s 20(3) of the Criminal Law Consolidation Act 1935 (SA) and the offence was aggravated by reason of having been committed by a police officer. The appellant challenged the conviction on the basis that there was an error in the interpretation of an audio recording tendered by the prosecution and there was a breach of procedural fairness. The central issue for the court was whether the Magistrate erred in finding that the appellant admitted to the offence by stating “belted you up” in the audio recording and whether there was a breach of procedural fairness in the trial.

The court held that the Magistrate’s interpretation of the audio recording was open on the evidence and there was no error. The court found that the audio recording was capable of bearing either interpretation and there was no clear and convincing evidence to support one interpretation over the other. The court also held that there was no breach of procedural fairness. The court found that the Magistrate did not need to disclose what he or she was minded to decide to enable the parties to criticise the mental processes of the judge before reaching a decision or to give a running commentary about the view the judge was taking of the evidence. The court found that procedural fairness was accorded as the appellant was given the opportunity to ascertain the relevant issues and to be informed of the content and nature of adverse material.

The court dismissed the appeal and affirmed the conviction. The court found that the interpretation of the audio recording did not alter the effect of the evidence in any material way and that affording the appellant the opportunity to comment on the finding would not have led to an alternative verdict being imposed. The court found that the entitlement to a fair hearing is qualified by an important practical question being whether further information could have possibly made any difference and an appellate court will not order a new trial if it would inevitably result in the making of the same order as made in the first trial. The court found that a denial of procedural fairness will only be found to result in a miscarriage of justice where there is a realistic possibility the breach was of such a nature or degree that it could have impacted the verdict of guilty. The court found that the breach of procedural fairness did not impact the verdict of guilty in this case.

Orders

Orders of the court

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Background

Background to the litigation

The appellant, Mr Andrew Allan Jaunay, is alleged to have assaulted Mr Matthew Odgers, the complainant, on 25 October 2013 while on duty as a police officer. I will refer to Mr Jaunay as the appellant and to Mr Odgers as the complainant. An audio recording was made by the complainant on his phone very soon after the alleged assault. The audio recording captured some exchanges between the appellant, the complainant and other individuals. After a trial in the Magistrate’s Court, the Magistrate found beyond reasonable doubt that in part of the audio recording the appellant was admitting to the offence charged. The Magistrate convicted the appellant. The appellant appealed the conviction. The appellant raised issues associated with the content and interpretation of the audio recording and asserted a breach by the Magistrate of the obligation to accord procedural fairness. Background The appellant was charged with assaulting the complainant on 25 October 2013 at Whyalla Stuart contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”). The offence was aggravated by reason of having been committed by a police officer. A second police officer, (“H”), was also charged with assaulting the same complainant and causing him harm contrary to s 20(4) of the CLCA. A significant passage of time elapsed between the event and the trial which took place in 2021. The prosecution opened its case against the appellant with the following particulars for count one against the appellant:[1] [The appellant] then strikes him [the complainant] to the left cheek, left side of his rather, with his right open palm, and this is count one. He was hit with enough force that it knocked him to the ground where he hit the back of his head on the concrete and rolled around.[1] Police v Jaunay and Hobbs (Magistrates Court of South Australia, 18 November 2021) (“Magistrate’s reasons”) at [17]. Prosecution called the complainant, the complainant’s mother, Ms Maria Odgers, a doctor who examined the complainant the day after the incident, and a police officer present at the incident. Prosecution tendered, among other things, an agreed statement of the complainant’s friend (“B”) present at the time of the incident, photographs, a disk of an audio recording taken by the complainant during the incident and, as an aide-memoire, a transcription of the audio recording. I set out below a summary of the evidence referred to in the Magistrate’s decision.The evidenceComplainant The complainant was 17 years old at the time of the alleged offending. The complainant was subject to a bail agreement which contained a curfew. The complainant gave evidence of walking from his brother’s house to meet B at an address in Panter Street in Whyalla Stuart on the night of 25 October 2013. The complainant intended to catch up with B and then invite him back to his house to play computer games. The complainant said he left his brother’s house and almost immediately called his mother and asked her to pick him up with B. When walking into Panter Street, the complainant saw a grey car which drove past and then returned. The car was an unmarked police car. The police officers in the car spoke to the complainant and they then got out and searched the complainant, finding a cone piece. The complainant was given a drug citation as a result.

Evidence

Evidence Before The Court

I set out below a summary of the evidence referred to in the Magistrate’s decision.The evidenceComplainant The complainant was 17 years old at the time of the alleged offending. The complainant was subject to a bail agreement which contained a curfew. The complainant gave evidence of walking from his brother’s house to meet B at an address in Panter Street in Whyalla Stuart on the night of 25 October 2013. The complainant intended to catch up with B and then invite him back to his house to play computer games. The complainant said he left his brother’s house and almost immediately called his mother and asked her to pick him up with B. When walking into Panter Street, the complainant saw a grey car which drove past and then returned. The car was an unmarked police car. The police officers in the car spoke to the complainant and they then got out and searched the complainant, finding a cone piece. The complainant was given a drug citation as a result. The complainant thought towards the end of the citation process he saw B walking towards him. The complainant said he asked the police officers to leave but the appellant said “you can fucking leave when I tell you to leave”[2] and said “I’ve seen your type before, you think you’re tough”.[3] The complainant said the appellant threatened to smack him in the head with his torch when he asked to leave. The complainant stated he made a blowing sound, described as “pfff”, and laughed in shock.[4] The complainant said the appellant then struck him to the left side of his face with his palm. The complainant described the blow as being hard enough to knock him onto the ground.[2] T291; Magistrate’s reasons at [22].[3] T292; Magistrate’s reasons at [22].[4] T292; Magistrate’s reasons at [22]. The complainant alleged that H then assaulted him. He asserted H smashed his phone out of his hand and that H with a hand around his throat lifted him into the air and slammed him to the ground, placing his knee on his chest. The complainant said he then started the voice recording function on the phone accidentally. The complainant said his mother arrived at the scene a couple of minutes after the alleged assaults occurred. When his mother arrived, the appellant was kneeling and speaking to him in a threatening way and then the appellant hurried over to his mother’s car. The complainant could not recall the words used by the appellant when he spoke to him just prior to his mother arriving at the scene. The complainant identified the appellant as the officer who had struck him. The complainant was able to distinguish between the different police officers based on their hair. The appellant was described as the “bald-headed officer”.[5][5] Magistrate’s reasons at [21].Audio recording The content of the audio recording formed a significant part of the prosecution’s case. I set out below the transcript of the audio recording which was received by the Magistrate as an aide-memoire.[6] [6] Magistrate’s reasons at [31].Officer:Ok little man. Here’s what we’re going to do. We’ll send you an appointment to say drugs are bad – look at me – 9:30 on Wednesday the 30th of October.Mathew:Yep.Officer:Ok.Mathew:Yep.Officer:Turn up, Because if you don’t I have to do a lot of typing.Mathew:Yep.Officer:If I have to do typing I get very angry because I’m an old man and I’ll come and hunt you down.Mathew:Alright.Officer:(Whispered) Now, if you want to tell your Mum that we (inaudible) you mate, that we fucking belted you up, guess what? Go right ahead.Mathew:Alright.Officer:Up to you.Mathew:Alright.Officer:Your choice. You want to be a man and play with the big boys. Then it’s your turn to play ok.Mathew:Alright.Officer:(Whispered) Just remember, I ain’t going anywhere pal.Mathew:Alright. Yep.Officer:Alright?Mathew:Yep.Officer:Your choice.Mathew:Yep.Officer:There you go.Mathew:Yeah.Officer:Congratulations.Mathew:Yep.Maria:Apparently someone hit you.Mathew:Yep they did.Maria:Who hit you.Mathew:This right here.[pause]Officer:Well if you believe that you’re crazy.Mathew:Reece did I end up getting knocked on the ground or what.Maria:Well –Officer:Well I don’t know how he’d know because he was at the end of the street.Mathew:Did I get knocked on the ground or what?Officer:Well I don’t know how he’d know he was at the end of the street.[people talking at once]Maria:Well, I’d like your names please.Mathew:Look at this Mum, he Mum Mum, look at this fucking hit me.[background noise]Maria:Alright –Mathew:Mum, I wouldn’t lie. Fuck! Mum would I lie.Maria:Language.[background noise]Officer:If you believe that I’m assaulting people on the side of the road[background noise]Maria:I’m just asking a question.Officer:Yeah. My name’s on there, if you want to make a complaint that’s fine. I’m afraid that’s (inaudible).Maria:I’m just asking. I’m just asking a question, that’s all.Officer:If you believe that I – Maria:I’m not being funny.Officer:That I would do that to a child on the street, then you must have rocks in your head. Alright.Maria:Well.Mathew:Oh wow (with laugh).Maria:I know it does happen – Officer:You are a very cheeky boy.Mathew:Me?[Voices]Officer:No, you should be under arrest, because you’ve been swearing – Mathew:You’ve just been lying to my Mum![two voices at once]Maria:Will you be quiet, please. I’m talking> There’s no need for that.[static]Officer:He’s a very cheeky boy –[static]Officer:He’s been saying things and carrying on and he’s been told to shut his mouth about 20 times.Maria:Alright well, apparently –Officer:He’s typical, spoiled Gen Y – Well, I don’t know how he would know because he was (inaudible) hundred metres up the street.Mathew:Hand on, what… (inaudible) 70 (laughs)[Talking in background]Mathew:Hey Reece, were you not at that corner?Reece:Yeah (inaudible)[Maria and Officer talking, inaudible]Officer:He’s more than welcome to play…Maria:[Inaudible]… play with you…Officer:Yes. It’s not. No it’s not.Maria:But, you haven’t got the right to…Officer:…assault anyone.Officer:Well, I actually, well I’m allowed to use reasonable force with him [inaudible] and he should be under arrest, I just can’t be bothered arresting a little boy tonight.Maria:Well –Officer:Alright.Maria:I don’t think a man need to be hitting a little boy that’s… assault.Officer:Well I didn’t hit him.Maria:…. Assault. That’s all I’m saying.Officer:He’s not a little boy the way he’s been acting.Maria:He is still a little boy.Officer:We’ve said enough tonight. We’re going. Ok.Maria:Ok.Officer:You make the choice.Maria:Righteo. In the car you 2.Mathew:Yip.

Decision

Reasons for decision

STEIN J

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Ratio Decidendi

Legal Principle Established

Established by: STEIN J

In the event the Court were to find that there was a failure to accord procedural fairness, counsel for the respondent submitted that the alternative interpretation did not amount to a substantial miscarriage of justice warranting intervention by the Court. He submitted a breach of procedural fairness must be material to an outcome in the sense that compliance could realistically have resulted in a different outcome in order to warrant relief. Counsel submitted the entitlement to a fair hearing is qualified by an important practical question being whether further information could have possibly made any difference and an appellate court will not order a new trial if it would inevitably result in the making of the same order as made in the first trial. Counsel contended that a denial of procedural fairness will only be found to result in a miscarriage of justice where there is a realistic possibility the breach was of such a nature or degree that it could have impacted the verdict of guilty. Counsel submitted that the fact the Magistrate interpreted the word that followed “belted you” as “one” instead of “up” did not alter the effect of the evidence in any material way. Either interpretation rendered the statement capable of amounting to an admission the appellant had struck the complainant. Consequently, counsel contended affording the appellant the opportunity to comment on the finding that the appellant uttered the words “belted you one” would not have led to an alternative verdict being imposed. Consideration There is no contest about the obligation to accord procedural fairness. The rules of procedural fairness require a party liable to be directly impacted by a decision to be given the opportunity to be heard. The rules of procedural fairness do not require the judge to disclose what he or she is minded to decide to enable the parties to criticise the mental processes of the judge before reaching a decision or to give a running commentary about the view the judge is taking of the evidence.[36] However, procedural fairness ordinarily will require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the content and nature of adverse material.[37] [36] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.[37] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [32] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. In Macks v Viscariello[38] (“Macks”), the Court comprising Lovell J, Corboy and Slattery AJJ considered a complaint of a failure to comply with the rule in Browne v Dunn[39] and allegations of a failure by the trial judge to accord procedural fairness based on assertions that the trial judge based his findings on matters not pleaded, not put in cross-examination and which the party had not been given an opportunity to address. In addressing the complaints, the Court considered instructive the decision of Kuhl v Zurich Financial Services Australia Ltd[40] (“Kuhl”) in which Heydon, Crennan and Bell JJ addressed a view formed by the trial judge that the plaintiff was reluctant to say precisely what happened in an accident. The trial judge relied on four questions and answers by the plaintiff in circumstances in which the plaintiff was not asked further questions about how the accident occurred. The majority in Kuhl concluded that in the absence of any challenge from the cross-examiner to the frankness or completeness of the plaintiff’s evidence, it was incumbent on the trial judge to make the challenge himself if his conclusion that the plaintiff had not been frank and complete was to play a role in his decision adverse to the plaintiff. The majority continued:[41]Perhaps the criticism in the judgment did not occur to the trial judge until after the plaintiff had left the box, or until after the hearing had concluded and before the Judge’s reserved judgment was given. It remained necessary either to recall the plaintiff or to have no regard to that aspect of the plaintiff's evidence. [38] Macks v Viscariello (2017) 130 SASR 1. [39] (1893) 6 R (HL) 67.[40] (2011) 243 CLR 361.[41] Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [75] per Heydon, Crennan and Bell JJ.