L, NM v Police

[2007] SASC 441

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

L, NM v POLICE

[2007] SASC 441

Judgment of The Honourable Justice Gray

14 December 2007

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - CONDUCT OF LEGAL PRACTITIONERS

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MATTERS CONNECTED WITH CONDUCT OF DEFENCE - LEGAL REPRESENTATION

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS

FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE LEGISLATION - CRIMES AND OFFENCES BY CHILDREN

Appeal against finding of guilt by Magistrate sitting in Youth Court – appellant charged with offence of property damage pursuant to section 85(3) of the Criminal Law Consolidation Act 1935 (SA) – appellant represented at trial – alleged that charge against appellant was fabricated by complainant – Magistrate found charge proved beyond reasonable doubt – appellant sentenced to 12 month good behaviour bond, $100 fine and $45 compensation to complainant – no conviction recorded – appellant’s father appeared for appellant on appeal – complaints concerning conduct of defence counsel and prosecution witness maintained on appeal – consideration of nature of appeal from Youth Court – whether appellant should be assisted on appeal – whether representation at trial adequate and competent – whether evidence of prosecution witness reliable and credible.

Held:  Appeal dismissed – Magistrate's findings as to date of incident subject of charge, nature of property damage and involvement of appellant upheld – no evidentiary support for allegations against defence counsel and prosecution witness – no risk of miscarriage of justice arose – appeal from Youth Court is in nature of re-hearing with wide powers of review – appropriate for Court to exercise discretion to allow representation of youth by his father in interests of fairness.

Police v A,TG [2006] SASC 299; H,A v Minister for Families and Communities [2005] SASC 339; P v Police (Unreported, Supreme Court of South Australia, Full Court, 19 July 1996, Cox, Perry and Lander JJ); Hunter v Walsh [1928] SASR 336; Devries v Australian National Railways Commission (1993) 177 CLR 472; Fox v Percy (2003) 214 CLR 118; Galladin Pty Ltd v Aimnorth Pty Ltd (1993) 60 SASR 145; JM v Police [2002] SASC 402; Evajade Pty Ltd v National Australia Bank (No 2) (2005) 240 LSJS 457; R v Hughes [2007] SASC 318; Ali v R (2005) 214 ALR 1; TKWJ v R (2002) 212 CLR 124; Nudd v R (2006) 225 ALR 161; Teeluck v State of Trinidad and Tobago [2005] 1 WLR 2421, considered.

L, NM v POLICE
[2007] SASC 441

Magistrates Appeal

GRAY J.

1. This is an appeal against a finding of guilt.[1]

   [1]    The Magistrate found the charge proved but did not enter a conviction.

2. The appellant, L, NM, was charged with the offence of damaging property pursuant to section 85(3) of the Criminal Law Consolidation Act 1935 (SA). The offence was said to have taken place on 22 February 2006. On the date of the alleged offence the appellant was aged 15 years.[2]  The appellant pleaded not guilty to the charge. 

   [2] It is for this reason that the identity of the appellant is suppressed: see section 63C of the Young Offenders Act 1993 (SA).

   The Trial

3. Following two adjournments, the trial came on for hearing before a magistrate sitting at the Youth Court at Elizabeth on 19 July 2007.  The appellant was represented by defence counsel. 

4. The prosecution called two witnesses to the incident, the complainant, Deborah Anne Ball, and Constable Hoffman, the officer investigating the incident.  The appellant and Simon Andrew Leonard, a friend of the appellant and an alleged witness to the incident, were called for the defence.

5. The background to the incident was recounted by the Magistrate in the following terms:

   Ms Ball says that about 1 p.m. in the afternoon of 22 February last year she was at her home, and she was alone at home.  She says whilst outside hanging washing she heard a voice from the front yard call out in a loud voice ‘Rodney’.  Whilst this was not her husband’s voice she believed it may have been a reference to her husband or partner, I think she named him, Mr Rodney Seekamp.  Mr Seekamp has been her partner of many years.  She knew him not be home at the time his name was called and thought it was curious, so she investigated the calling out of his name.  The voice came from the front of the house.  She went towards the front of the house.  At that time she couldn’t see who it was or who had called out, so she went back to her washing on the line.

   Ms Ball heard further noises, again from the front of the house, and so went around to the front of the house and stood in the driveway, and it was there that she saw three young male persons.  Each one had a pushbike, one of them she knew very well, the [appellant, L, NM].  It was never in dispute in the trial that she knew [L, NM] well.  Indeed it seems she has known him all of his life; he is the son of a neighbour.

6. The Magistrate then described the incident giving rise to the charge on the prosecution case:

   Ms Ball said plainly that she saw three youths, each of them on a pushbike.  She saw one of them that, as I said, she knew well, [L, NM] ‘kicking’ the letterbox at the front of her yard.  The letterbox itself was not well described apart from it being on a pole.  The pole, Ms Ball said, was fixed in the ground.  It was fixed in the ground adjacent to the driveway of the house.  [L, NM], she said, was 20 metres away.  She saw him ‘kicking’ at it, and that it was bent over.  Later in her evidence-in-chief, upon invitation of the prosecutor to say more about it, she said that she saw three kicks to the pole and that eventually it snapped off at ground level.  She said she called out ‘I saw you do that’, and [L, NM] and the other two boys rode away.  She then called the police.  The letterbox had been in the ground adjacent to the driveway.

   Ms Ball says it was Constable Hoffman who arrived, but that it was some time later.  She reported the damage on the phone, and when Constable Hoffman arrived reported it to him, and he inspected the damage and he took her particulars.

7. The case for the defence was that the incident, the subject of the charge, did not in fact occur and was a deliberate fabrication by Ms Ball.  The Magistrate summarised this position as follows:

   It was not disputed that [L, NM] the [appellant] was there at the front yard of her premises on the date in question.  However, the circumstances put to her were entirely different, startlingly different to those that [Ms Ball] recounted.  It was put to [Ms Ball] that her version was a complete fabrication and a falsified simplification of what actually occurred, which was much more elaborate.  [Ms Ball] denied making a false and fabricated version of events.

   …

   … The allegations put to Ms Ball were outlined in the evidence given by [the appellant] [L, NM] and his witness Mr Simon Leonard.  …

   Jointly they generally recounted that they were out with the company of young friends on the date in question.  They were in company with James, or Jimmy, as one of them called him, William, Zach.  Those three, of course, were joined by Simon Leonard, who gave evidence, and [L, NM], the [appellant].  In summary, then, there were five youths, young men, and they said that they were on four pushbikes amongst the five of them, that [L, NM] didn’t have a bike, that he was riding as a passenger on Simon Leonard’s bike.  They gave evidence that in a group they rode past the home of Ms Ball.  This was, then, as I said, the group of five youths and four bikes, and [L, NM] without a bike at all.  Entirely inconsistent with Ms Ball’s recollection, but the differences didn’t end there.  They were extensive.  Simon and [L, NM] said that they passed by the home of Ms Ball without any incident at all, without even stopping, as did others that were with them, with the exception of one person.  [L, NM] said that he turned to hear and see Jimmy arguing with Mr Seekamp in the driveway at the front of the house.  Simon said it was Zach who was there arguing with Mr Seekamp.  As I said, it doesn’t make much difference really to me as to who was correct about that.  They both say that whoever it was that initiated the dispute with Mr Seekamp, they all jointly rode back there and joined that person where Mr Seekamp was in the driveway of his home.  They said that Mr Seekamp was upset at the damage to his letterbox.  There was no suggestion that Ms Ball was even there nor present at this stage, although, as I will recount shortly, she did come out, but much later and towards the end.  So then there were five youths, four bikes and an adult, Mr Seekamp.  Mr Seekamp, it seems, aggressively accused Simon Leonard of damaging the letterbox.  [L, NM] it is said, was never accused at all, not then, not later and not by anyone, let alone Ms Ball.  It was said that Mr Seekamp then, in general terms, assaulted Mr Leonard, Simon Leonard, by forcibly pulling him from his bike and then getting him down onto the ground.  Seekamp, it seems, assaulted Leonard in this way.  It seems Simon Leonard lived nearby, because [L, NM] said he went to Leonard’s home and returned with Leonard’s mother.  So then there were five youths and two adults, the adults being Simon Leonard’s mother and Mr Seekamp.

   At some later stage they say Ms Ball came out of the house.  It was not suggested by either of them, [L, NM] or Simon Leonard, that Ms Ball ever accused anyone of damaging the letterbox, let alone [L, NM].  They did say that apparently for some reason that was not disclosed to me she chased [L, NM] whilst holding a mobile phone.  [L, NM] said that when Simon Leonard, not him, was being accused of damaging the letterbox, he, [L, NM], inspected it specifically to see whether it was damaged or not.  He said the pole was cemented into the ground.  He said it was also wide around the tree, and consequently adjacent to the tree and not necessary adjacent to the driveway.  He said that he examined it carefully, even rattled or shook it, and said it was not damaged at all.  Simon Leonard also said that he saw the letterbox, and it was not damaged.  He said it was secured to the tree.  He said it was connected to the tree, and it was also standing straight up in the ground.  It was not damaged, he said.  It was also attached to the tree with a bit of wood, was his description.

8. During cross-examination of Ms Ball, the appellant’s version of the incident was put to her progressively.  As the appellant’s version of the facts slowly unfolded, Ms Ball suggested that this version of the events was by and large what had occurred in a separate incident in about June 2006.  Ms Ball suggested that the appellant had confused the incident the subject of the charge with an incident that had occurred several months later.

9. On this basis, the Magistrate identified the principal issue at trial as follows:

   The question is, on the whole of the evidence do I accept that Mrs Ball is telling the truth about what she saw, and that it was on 22 February 2006.  I have to be satisfied beyond a reasonable doubt of her version, and there is no onus on the defendant to prove anything.  It is upon the prosecution and their witness to establish the essential elements to my satisfaction.

10. After thoroughly considering the whole of the evidence, the Magistrate found that the charge had been proved beyond reasonable doubt.  In the course of reaching this conclusion, the Magistrate made the following findings:

    -The incident, the subject of the charge, occurred on 22 February 2006;

    -Ms Ball reported the incident and spoke to Constable Hoffman on 22 February 2006;

    -Ms Ball’s version of the incident was correct;

    -The damage to the letterbox was caused by the appellant;

    -The nature of the damage was as Constable Hoffman described; and

    -The incident described by the appellant and supported by Mr Leonard occurred in or about June 2006.

11. In reaching this conclusion, the Magistrate found that Ms Ball and Constable Hoffman were credible and reliable witnesses.  The Magistrate noted that Ms Ball’s version of the incident was “perfectly plain and well documented”.  On the other hand, the Magistrate observed that “there was no evidence before me from the defence side as to the date of the events that they were describing had occurred”.

12. The Magistrate sentenced the appellant pursuant to the Young Offenders Act 1993 (SA), and imposed a $100, 12-month good behaviour bond without imposing a conviction, and ordered that he pay $45 compensation to Ms Ball. The Magistrate found that the appellant had not deliberately lied about the incident for an improper motive, but that he had mistakenly confused the events of 22 February 2006 and June 2006. In the course of his sentencing remarks, the Magistrate made the following observations:

    I have been asked to impose a bond and do it without conviction.  It seems that [L, NM] has moved out from the area adjacent to Ms Ball, together with his family.  I gathered during proceedings that his father suffers from some behavioural problems associated with his mental health and lack of ability in controlling his temper.  I saw some evidence of that today.  [L, NM], on the other hand, seems quite a well adjusted, compliant young boy who was kind enough to offer to pay the compensation today.

    I am not prepared to give up on [L, NM] and impose a criminal conviction. I find the charge proved but without recording a conviction and without imposing penalty today provided he enters into an obligation in the sum of $100 to be of good behaviour for a period of 12 months.

    The Appeal

    Nature of the Appeal

13. On 14 August 2007, a notice of appeal was filed on behalf of the appellant by his father, L, R. Pursuant to section 22(2)(c) of the Youth Court Act 1993 (SA), an appeal from a decision of a magistrate lies as of right to a single judge:

    (1)A party to proceedings in the Court may appeal against any judgment given in the proceedings (including an acquittal on a charge of a summary or indictable offence) but an appeal does not lie against a judgment in a preliminary examination.

    (2)       The appeal lies –

    …

    (c)in the case of any other judgment given by a Magistrate or a special justice to the Supreme Court constituted of a single Judge. 

14. In Police v A, TG,[3] the Full Court of this Court confirmed that an appeal pursuant to section 22 of the Youth Court Act was an appeal in the nature of a re-hearing.  The following principles guide the Court when considering an appeal from the Youth Court:[4]

    -Appeals from the Youth Court are to be considered as analogous to an appeal from a court of summary jurisdiction pursuant to section 42 of the Magistrates Court Act 1991 (SA);[5]

    -The powers of the Supreme Court in reviewing an appeal from a Youth Court are wide;[6]

    -The appellate court has a duty to inquire, and to protect an appellant against any substantial miscarriage of justice;[7] and

    -The Supreme Court is required to examine for itself the Youth Court’s assessment of the evidence, bearing mind that it does not have the advantage of seeing and hearing the witnesses.[8]

    [3]    Police v A, TG [2006] SASC 299.

    [4]    Police v A, TG [2006] SASC 299 at [12] – [13].

    [5]    Police v A, TG [2006] SASC 299 at [13] citing H,A v Minister for Families and Communities [2005] SASC 339.

    [6]    Police v A, TG [2006] SASC 299 at [13] citing P v Police (Unreported, Supreme Court of South Australia, Full Court, 19 July 1996, Cox, Perry & Lander JJ).

    [7]    Police v A, TG [2006] SASC 299 at [13] citing Hunter v Walsh [1928] SASR 336 at 340.

    [8]    Police v A, TG [2006] SASC 299 at [13] citing P v Police (Unreported, Supreme Court of South Australia, Full Court, 19 July 1996, Cox, Perry & Lander JJ) and Devries v Australian National Railways Commission (1993) 177 CLR 472.

15. In Fox v Percy,[9] the High Court discussed the nature of an appeal by way of re-hearing.  Gleeson CJ, Gummow and Kirby JJ observed:

    On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance” [Dearman v Dearman (1908) 7 CLR 549 at 561]. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record [Dearman v Dearman (1908) 7 CLR 549 at 561. See also Scott v Pauly (1917) 24 CLR 274 at 278-281]. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share [Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 637; [1985] 1 All ER 635 at 637, per Lord Scarman, with reference to Joyce v Yeomans [1981] 1 WLR 549 at 556; [1981] 2 All ER 21 at 26. See also Chambers v Jobling (1986) 7 NSWLR 1 at 25].

    …

    Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect” [Dearman v Dearman (1908) 7 CLR 549 at 564, citing The Glannibanta (1876) 1 PD 283 at 287].

    These remarks are apposite to this appeal.

    [9]    Fox v Percy (2003) 214 CLR 118 at [23], [25] (Gleeson CJ, Gummow & Kirby JJ).

16. The powers of the Court on appeal are set out in section 22(3) of the Youth Court Act in the following terms:

    On the appeal, the appellate court may exercise any one or more of the following powers:

    (a)it may confirm, vary or quash the judgment subject to the appeal and, if the court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;

    (b)     it may remit the matter for hearing or further hearing;

    (c)it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.

    The terms of section 22(3) confirm the wide powers available to this Court on the hearing of an appeal.

    Preliminary Issue– Representation of Appellant

17. On the hearing of the appeal, a preliminary issue was raised concerning the appearance of L, R on behalf of the appellant.  It is convenient to first address this issue before considering the substantive arguments on appeal.

18. Rule 22 of the Supreme Court Civil Rules 2006 (SA) provides that a person may only be “represented” in proceedings by a lawyer, but that a person who appears in person may, with the Court’s permission, be “assisted” in court by a person approved by the Court.  The appellant’s father is not an admitted practitioner, and there was no evidence that he has had any legal training.

19. The Court has a discretion to permit the non-legal representation of a party at trial if it is necessary or convenient in the interests of justice.[10]  In JM,[11] the father of the appellant sought leave to represent the appellant, who was then aged sixteen, on appeal proceedings to a single judge of the Supreme Court from a decision of a magistrate sitting in the Youth Court.  Bleby J discussed the relevant principles as follows:[12]

    The appellant was not represented by counsel either in the Youth Court or before me. In this Court the appellant’s father sought leave to represent him, as he had also assisted the appellant in the Youth Court. Representation of a party by a non-legal practitioner is not a right and is not always desirable, however I am satisfied that the Court has a discretion in certain limited circumstances to allow such a representation to occur: Galladin Pty Ltd v Aimnorth Pty Ltd (1992) 60 SASR 145 and McGregor-Day v South Australian College of Advanced Education and Bell (unreported) 10 October 1994, Judgment No. S4406.

    The appellant is a juvenile. He is presently aged 16.

    He was aged 15 at the time of the offences. He is said to have the comprehension and reading ability of a nine year old. In the circumstances I considered that it was appropriate that he be represented by an adult in the person of his father. The pre-eminent consideration in deciding whether to grant leave to a lay person to represent another must be fairness to the party concerned. The appellant would have been placed at a distinct and unfair disadvantage if I did not grant him leave to be represented by an adult close relative.

    [10]   Galladin Pty Ltd v Aimnorth Pty Ltd (1993) 60 SASR 145 at 147.

    [11] JM v Police [2002] SASC 42.

    [12] JM v Police [2002] SASC 42 at [5]-[7].

1. I respectfully adopt his Honour’s analysis.  In this case, as earlier observed, the appellant was aged 15 years at the time of the incident the subject of the charge.  He is presently aged 17 years.  In Court, the appellant gave the appearance of being immature and in need of assistance on the appeal.  It is relevant that the appellant consents to his being assisted by his father.[13]  It was submitted on appeal that the appellant’s former solicitors were unwilling to act for the appellant on appeal due to a perceived conflict of interest because of their acting for the appellant’s father in other proceedings.  In the circumstances, in the absence of legal representation, it was appropriate for the appellant’s father to assist him on the appeal and speak on his behalf.

   [13]   Evajade Pty Ltd v National Australia Bank (No 2) (2005) 240 LSJS 457.

   Grounds of Appeal

2. By a notice of appeal dated 14 August 2007, the appellant made complaints against his defence counsel at trial, the Magistrate hearing the trial, and Constable Hoffman, the police officer tasked to the incident the subject of the charge.  At the hearing of the appeal, the complaints alleged against the Magistrate were withdrawn.

3. On appeal, the appellant maintained the submission that his version of the factual circumstances surrounding the charge, which was supported by Mr Leonard – held by the Magistrate as amounting to confusion with a subsequent event occurring in June 2006 – was the actual circumstance of the incident the subject of the charge.

   Complaints against Defence Counsel

4. Complaints were made by the appellant concerning the adequacy and competence of his legal representation at trial.  It is convenient first to address the legal principles relevant to this type of allegation.  The relevant principles were recently summarised by the Court of Criminal Appeal of this Court in Hughes.[14]  The following principles can be distilled from that decision:

   -The critical issue on an appeal based on the incompetence of defence counsel is whether, viewed objectively, the actions or omissions of counsel resulted in a miscarriage of justice;[15]

   -The focus of the appellate court ought to be on the impact which the errors of counsel have had on the trial and the verdict, rather than why such conduct occurred;[16]

   -The onus of establishing a miscarriage of justice lies on the appellant;[17] and

   -The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the trial.[18]

   [14]   R v Hughes [2007] SASC 318.

   [15]   R v Hughes [2007] SASC 318 at [47]; [68] and [73] citing Ali v R (2005) 214 ALR 1; TKWJ v R (2002) 212 CLR 124; Nudd v R (2006) 225 ALR 161.

   [16]   R v Hughes [2007] SASC 318 at [50] and [69] citing Teeluck v State of Trinidad and Tobago [2005] 1 WLR 2421 and Nudd v R (2006) 225 ALR 161.

   [17]   R v Hughes [2007] SASC 318 at [47] citing Nudd v R (2006) 225 ALR 161 at [51].

   [18]   R v Hughes [2007] SASC 318 at [74] citing Nudd v R (2006) 225 ALR 161 at [79].

5. It was said that defence counsel, in breach of his instructions, entered into negotiations with the prosecution concerning the tendering of evidence.  It was also complained that counsel failed to lead relevant photographic evidence which would have assisted the defence of the appellant.  It was further contended that defence counsel failed properly to cross-examine Ms Ball with respect to this evidence.  Finally, it was complained that defence counsel failed properly to cross-examine Ms Ball with respect to credit generally.

6. It should be observed that the factual assertions relied upon to support these complaints are vague and imprecise.  With some difficulty I have articulated the appellant’s complaints in the following terms.

7. It was contended that defence counsel, in breach of instructions, negotiated with the prosecution to have two photographs of the damage to the letterbox “removed from evidence”, in order that the credibility of the appellant as a witness would not be challenged by the prosecution.  It was said that defence counsel, in breach of his instructions, did not seek to tender these photographs.  It was submitted that the type of damage to the letterbox as alleged by the prosecution was inconsistent with the photographic evidence of the damage.  It was submitted that Ms Ball gave evidence that the wooden post connected to the letterbox was broken below the ground level, but that the photographs revealed damage to the post above ground level.  It was submitted that an inference could be drawn that Ms Ball’s in court evidence amounted to “lies” and was “false and misleading”.  It was further contended that counsel failed properly to cross-examine Ms Ball with respect to this inconsistency, including, specifically, her motivation for allegedly lying to the Court. 

8. In support of these allegations, reference was made to the Young Offenders Act and a document entitled “Prosecution Policy and Guidelines”, which is apparently available for public download on the Director of Public Prosecutions’ website.  On examination of these materials, neither appears relevant to support the allegations.  No further evidence was advanced by the appellant. 

9. In response to these allegations, on the hearing of the appeal the prosecution tendered, by consent, an affidavit sworn by defence counsel for the appellant at trial.  The photographs the subject of the dispute were annexed as exhibits to this affidavit. 

10. The two photographs, dated 27 May 2006, were taken some three months after the incident the subject of the charge.  The letterbox is shown resting against a tree and the wooden post connected to the letterbox has been broken just above ground level.

11. The affidavit of defence counsel directly responded to and refuted the complaints alleged against him.  With respect to the complaint concerning defence counsel allegedly having negotiated with the prosecution, in breach of his instructions, counsel deposed as follows:

    I say that [L, R] did not instruct me that there was to be no negotiation between myself and the prosecution.  Neither did [L, NM].

    I did not negotiate to have the photos removed from evidence. 

    With respect to the complaint concerning defence counsel’s failure to tender the photographs, in breach of his instructions, counsel deposed as follows:

    A copy of the photos supplied to me by the prosecution is exhibited to this affidavit … My main concern with the photos was that they had been taken 3 months after the incident took place, and in my view, if they were relevant at all, they tended to favour the prosecution case rather than the defence case.  I spoke with the prosecution, asking whether the photos would be led, and was told by the prosecutor that he was not going to rely on them.  To the best of my recollection, I told [L, NM] and [L, R] that the prosecution was not going to lead the photographs and that this was beneficial to our case.  I did not tell them that the prosecution would not challenge the credibility of our witness.

    I recall that [L, R] claimed that the way in which the letterbox was allegedly broken was not consistent in his view with the damage in the photo.  I advised him that if that was to be argued we would need to call expert evidence.  I asked him whether he wanted to do this, and he said that he wanted the matter to be over and done with.  My advice was not to put the photos in evidence, and I never received formal instructions from [L, R] or [L, NM] to do so.

    …

    I say that the photos were never in evidence at any stage.

    With respect to the complaint concerning defence counsel’s failure properly to cross-examine Ms Ball, in breach of his instructions, counsel deposed as follows:

    While I do not recall [L, R] specifically telling me that [Ms Ball] was giving false and misleading evidence, I recall that during the trial, [L, R] spoke to me about an ongoing neighbourhood dispute between (primarily) [Ms Ball’s] partner Rodney Seekamp and [L, R] which had quite some history.

    …

    … I say that I did cross-examine [Ms Ball]. …

    … I did not disregard the instructions given to me.  I put [the matter of the neighbourhood dispute] to [Ms Ball] in cross-examination.  She agreed with the propositions that I put.  I recall that while I saw sufficient relevance in the nature of the dispute to justify cross-examining Ms Ball (with a view to commenting at the conclusion of the trial about the fact that there may be potential bias in her evidence), I was nevertheless reluctant to press the cross-examination to a point at which I might be considered to be placing character in issue, as on my instructions, both my client and our witness Simon Leonard had previous criminal history which if presented to the court could be prejudicial to our case.

    … I point out that I cross-examined [Ms Ball] about prior inconsistent statements made by her.

12. A review of the transcript of proceedings does not provide any support for the appellant’s allegations.  As earlier observed, no relevant evidence was put forward in support of the complaints made against defence counsel.  In this circumstance, the complaints amount to a bare allegation of misconduct and should be rejected.  As I observed in Hughes,[19] this Court is concerned when serious allegations are advanced against defence counsel without any real attempt to provide the necessary factual foundation to support those allegations, or to allow defence counsel at trial the proper opportunity to address those allegations.

    [19]   R v Hughes [2007] SASC 318 at [77].

13. I consider that defence counsel’s decision not to tender the photographs and his method of cross-examination of the complainant were “rational tactical decisions”[20] which “did not make the trial unfair, or produce a miscarriage of justice”.[21]

    Complaints against Police Officer

    [20]   TKWJ v R (2002) 212 CLR 124 at [17] (Gleeson CJ)

    [21]   TKWJ v R (2002) 212 CLR 124 at [17] (Gleeson CJ).

14. Complaints were advanced against Constable Hoffman concerning his reliability and credibility.  It was said that Constable Hoffman’s evidence was not credible as he did not take diary notes of the incident, or if such notes were made, did not supply them to defence counsel.  No evidence was given by the appellant to support this allegation.

15. The transcript of the proceedings reveals that Constable Hoffman gave evidence that when he attended Ms Ball’s residence on 22 February 2006 he took sufficient notes to “raise the report” but did not know if the matter would proceed.  When he re-attended on 2 March 2006, Constable Hoffman took detailed notes of the victim’s statement, but did not make notes of his observations. 

16. It was submitted by the respondent that defence counsel requested a copy of “original notes of Police Officers” on 12 April 2007, and that a copy of all relevant notes was faxed by the Police Prosecutor on 1 May 2007.  It was further submitted that the notes were not tendered at trial by either party, presumably because they were of minimal relevance if not inadmissible.  This submission is supported by the affidavit of defence counsel which relevantly deposed as follows:

    I can say that I received copies of [the] Constable Hoffman’s notes.  No other police officer was called by the prosecution (which I commented on in my closing address).

    A copy of these notes was annexed as an exhibit to counsel’s affidavit on the hearing of the appeal.  There is nothing in the material to provide any support for the appellant’s submission.  There is no reason to not accept defence counsel’s affidavit.

17. As earlier observed, in the course of his reasons, the Magistrate made favourable observations concerning the reliability of the evidence of Constable Hoffman:

    I am comfortable relying on the recollection of Hoffman as, indeed, it was his job and his business to attend and respond according to his duty to the allegation of property damage, and take appropriate action.

    …

    It seems that me that [Constable Hoffman] was an independent witness.  He had no prior association with the [appellant] or the victim, and no appreciation of the animosity issues between their families as described.  He was simply a policeman attending at the scene in the course of his day-to-day work.

18. In my view, this assessment was open on the evidence, and was confirmed by my review of the evidence.

    Conclusion

19. Earlier I have set out in detail the Magistrate’s findings of fact and his reasons for reaching the conclusion of guilt.  On the hearing of the appeal no basis was identified for challenging the Magistrate’s acceptance of the evidence of Ms Ball and Constable Hoffman.  My review of the evidence confirms that each of the findings was open to the Magistrate.  Given those findings, the conclusion that the prosecution had proved each of the elements of the offence beyond reasonable doubt was inevitable.  I have also reached the conclusion that the findings were appropriate findings.  There is no risk of a miscarriage of justice having occurred.

20. I dismiss the appeal.