Jones v Police
[2009] SASC 242
•19 August 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
JONES v POLICE
[2009] SASC 242
Reasons for Decision of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice Kelly)
19 August 2009
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY
Application for permission to appeal to the Full Court of the Supreme Court against the decision of a single Judge - Judge dismissed applicant's appeal against finding of guilt made by a Magistrate - whether permission should be granted.
Held: applicant seeks to reargue issues of fact that have been decided by a magistrate and a judge - permission to reargue facts of a case will only be granted where there is some compelling reason to do so in the interests of justice - no compelling reason - permission to appeal refused.
Supreme Court Civil Rules 2006 r 291, referred to.
Jones v Police [2009] SASC 170, discussed.
JONES v POLICE
[2009] SASC 242Full Court: Doyle CJ, Anderson and Kelly JJ
THE COURT: Mr Jones was found guilty by a Magistrate of assaulting a police officer. He appealed against the decision to the Supreme Court. A Judge dismissed the appeal. Mr Jones now applies for permission to appeal to the Full Court.
The application has been considered by the Full Court comprising Doyle CJ, Anderson and Kelly JJ.
The Court has considered the reasons of the Judge, and a detailed summary of argument filed by Mr Jones’ solicitors. The Court has proceeded under r 291 of the Supreme Court Civil Rules 2006 and under Practice Direction 6.1.
According to the Judge, the prosecution case was that at about 2:30 am one morning at Port Augusta, a large group of people had assembled at the foreshore. They were told by police to move away. There was then a disturbance, in the course of which the prosecution alleged that Mr Jones assaulted Constable Gregory by kicking her and hitting her with his mobile phone: Jones v Police [2009] SASC 170 at [4].
Mr Jones gave evidence. His case was that he saw Constable Gregory attempting to hit an Aboriginal man with a torch. I gather that Mr Jones was taking pictures of events on the camera of his mobile phone. He claimed that Constable Gregory tried to hit him with a torch, and told him to put the camera away. He claimed that he merely pushed Constable Gregory with his left hand and ran away: [11].
The Magistrate found that Mr Jones did strike Constable Gregory on the left side of her head, and also that he kicked her: [13].
The written summary of argument in support of the application for permission to appeal discloses that Mr Jones wishes to reargue the facts of the case. The summary does so at a level of detail one would expect at trial, rather than on an application for permission to appeal to the Full Court.
Three main issues are raised.
The Magistrate refused to admit into evidence the visual record made by Mr Jones using the camera in his mobile phone. The Magistrate said that the visual record was of no assistance, and accordingly did not admit it. The Judge held that the Magistrate erred, the video recording being admissible, the question of weight being another matter. The Judge said that the recording was of either no weight or minimal weight: [25]. The Judge did not consider that the Magistrate’s error could have had any effect on the outcome.
Mr Jones submits that if the visual record had been admitted, and he had given evidence explaining it, it would have supported his case. We do not accept that argument. There is no reason to doubt that the Magistrate and the Judge, when considering the weight to be attributed to the visual record, did so in light of their understanding of the case. There is also the question of whether evidence from Mr Jones, purporting to interpret the visual record, would have been admissible in any event.
There is no reason why permission to appeal should be granted to enable these issues to be reargued.
Mr Jones challenges the Magistrate’s finding that he was the offender, arguing that prosecution witnesses were mistaken as to the identity of the offender. This was not the usual case of mistaken identity. A number of the police witnesses knew Mr Jones. The argument is that key witnesses gave evidence that conflicted, and that they must have made a mistake in their observations. The Judge’s conclusion was that the case on identification was strong: [19].
There is no reason why the Full Court should revisit this issue.
Finally, Mr Jones submits that the charge was duplicitous. In his reasons the Judge says that this issue was not pursued on appeal: [16]. In any event, the Judge considered that there was nothing in the point, the finding of guilt relating to a single incident. Once again, the written outline on this point indicates nothing more than a reargument of the issues already disposed of.
We have dealt relatively briefly with the grounds on which the application for permission is made. We do so because the case is plainly an application to reargue issues of fact that have already been decided by a magistrate and by a judge. That is not a proper basis for a grant of permission to appeal to the Full Court. Permission to reargue the facts of a case will only be granted when there is some compelling reason to do so in the interests of justice. No such factor is present in this case.
Accordingly, the Court orders that permission to appeal be refused.
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