Jones v Police - [2009] SASC 170

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JONES v POLICE
[2009] SASC 170
Judgment of The Honourable Justice Gray
12 June 2009
CRIMINAL LAW - EVIDENCE - CREDIBILITY
EVIDENCE - ADMISSIBILITY AND RELEVANCY - FACTS RELEVANT TO FACTS IN ISSUE
Appeal against judgment of Magistrate - appellant charged with assault of police officer in company - appellant found guilty of common assault - whether Magistrate erred with respect to identification of appellant - whether Magistrate erred in findings of credibility and reliability of witnesses - whether Magistrate erred rejecting tender of video evidence recorded on mobile phone.
Held: appeal dismissed - video evidence admissible but of little weight - Magistrate's findings open on evidence.
Criminal Law Consolidation Act 1935 (SA) s 20, referred to.
Tims v Police [2008] SASC 141; Festa v The Queen (2001) 208 CLR 593, considered.

JONES v POLICE
[2009] SASC 170
Magistrates Appeal
GRAY J:

This is an appeal against the judgment of a Magistrate.
The appellant, Kerrelle Shane Jones, was jointly charged on Information with the aggravated offence of assault.[1] It was alleged that on 1 December 2007, the appellant assaulted a police officer, Sonia Gregory, knowing her to be in the course of her duties, and in company with one or more other persons.
On 3 February 2009 the appellant, following a trial before a Magistrate, was found guilty of the offence of assault. The Magistrate was not satisfied that the offence was aggravated. The Magistrate has not yet recorded a conviction or sentenced the appellant.
[1] Section 20 (3) of the Criminal Law Consolidation Act 1935 (SA) provides:
(3)A person who commits an assault is guilty of an offence.
(a) for a basic offence—imprisonment for 2 years;
(b)for an aggravated offence (except one to which paragraph (c) applies)—imprisonment for 3 years;
(c)for an offence aggravated by the use of, or a threat to use, an offensive weapon—imprisonment for 4 years.
The Trial
At about 2:30am on 1 December 2007, Sonia Gregory, a police officer, attended the foreshore at Port Augusta. A large group of people had assembled at the foreshore. They were directed by police to move away from the area. A confrontation followed. It was alleged that the appellant assaulted Constable Gregory by kicking her and striking her with his mobile phone.
Evidence was called by the prosecution from police officers who attended on the foreshore at Port Augusta. Constables Matthew Vario and Jessica Newall, two of those witnesses, knew the appellant. They both identified the appellant as the person who assaulted Constable Gregory.
Constable Vario had contact with the appellant for several years. He had given the appellant “lifts home in the past” and “dealt with him in regard to other matters”. He gave evidence that he saw the appellant kick Constable Gregory. He observed that the appellant was wearing a purple and white West Augusta Football Club top. At the time Constable Vario was a short distance from the incident. He recognised the appellant and called out…

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: [2009] SASC 170
Decision Date: 12 June 2009

CaseChat Overview and Summary

In the matter of Jones v Police, the appellant was charged with assaulting a police officer in company. Following a trial, the appellant was found guilty of the offence of common assault. The appellant appealed the judgment to a higher court, raising several grounds for the appeal, including the identification of the appellant, the credibility and reliability of the witnesses, and the rejection of video evidence tendered by the appellant. The appeal was heard and determined by a judge of the higher court.

The legal issues that the court was required to decide included whether the Magistrate erred in identifying the appellant, whether the Magistrate erred in findings of credibility and reliability of witnesses, and whether the Magistrate erred in rejecting the tender of video evidence recorded on a mobile phone. The court needed to assess whether the Magistrate's findings were open to the evidence presented and whether any errors made by the Magistrate were significant enough to warrant a different outcome.

The court found that the video evidence tendered by the appellant was admissible but of little weight. The court was unable to determine what the video depicted beyond some indistinct human figures and flashes of light. The court did not consider that the video contradicted the evidence of the Constable in any material respect nor did it support or corroborate the evidence of the appellant in any material way. The court found that the Magistrate, in his reserved judgment, discussed the evidence in detail, addressed the relevant issues, made findings as to credibility and reliability, identified the correct legal principles and applied them. The findings made were justified by the evidence. A review of the evidence confirms the correctness of the Magistrate’s findings. Consequently, the appeal was dismissed.

The final orders of the court were that the appeal was dismissed and the decision of the Magistrate was upheld. The appellant remained found guilty of the offence of common assault. The court did not consider the video evidence to be of significant weight and did not find any errors made by the Magistrate that would warrant a different outcome. The findings made by the Magistrate were confirmed by the higher court.

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

I consider that the video recording was of no or minimal weight. My review of the video recording confirms the Magistrate’s conclusion that it showed a confused situation. I was not able to reach any conclusion as to what the video depicted, save that at the outset there were some indistinct human figures and that late in the video there were some flashes of light. I do not consider that it contradicted the evidence of Constable Gregory in any material respect. Further, I do not consider that it supported or corroborated the evidence of the appellant in any material way. Conclusion The Magistrate, in his reserved judgment, discussed the evidence in detail, addressed the relevant issues, made findings as to credibility and reliability, identified the correct legal principles and applied them. The findings made were justified by the evidence. A review of the evidence confirms the correctness of the Magistrate’s findings. This appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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