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.

This is an appeal against a finding of guilt.[1]
[1] The Magistrate found the charge proved but did not enter a conviction.
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…

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: [2007] SASC 441
Decision Date: 14 December 2007

CaseChat Overview and Summary

In this case, the appellant, L, NM, brought an appeal against a finding of guilt by a Magistrate sitting in the Youth Court of South Australia. The appellant was charged with property damage under section 85(3) of the Criminal Law Consolidation Act 1935 (SA) and was represented at the trial. The appellant claimed that the charge was fabricated by the complainant. The Magistrate found the charge proven beyond reasonable doubt and sentenced the appellant to a 12-month good behaviour bond, a $100 fine, and $45 compensation to the complainant, with no conviction recorded. On appeal, the appellant’s father appeared on the appellant's behalf and maintained the complaints concerning the conduct of defence counsel and the prosecution witness. The central legal issues were whether the appellant should be assisted on appeal, whether the representation at trial was adequate and competent, and whether the evidence of the prosecution witness was reliable and credible.

The Court examined the nature of the appeal from the Youth Court and concluded that it is in the nature of a re-hearing with wide powers of review. The Court found that there was no evidentiary support for the allegations against the defence counsel and the prosecution witness. The Court held that no risk of a miscarriage of justice arose and that it was appropriate to exercise the discretion to allow the youth to be represented by his father in the interests of fairness. The Court upheld the Magistrate's findings regarding the date of the incident, the nature of the property damage, and the appellant's involvement, and concluded that the findings were open on the evidence and appropriate. The Court found no basis for challenging the Magistrate's acceptance of the evidence of Ms Ball and Constable Hoffman.

The Court dismissed the appeal, finding that the conclusion that the prosecution had proved each of the elements of the offence beyond reasonable doubt was inevitable, given the Magistrate's findings. The Court confirmed that there was no risk of a miscarriage of justice having occurred. The appeal was dismissed, and the findings of the Magistrate were upheld.

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

GRAY J

In my view, this assessment was open on the evidence, and was confirmed by my review of the evidence.Conclusion 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. I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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