L v Police - [1998] SASC 6821

L v POLICE
[1998] SASC 6821

Magistrates Appeal
Bleby J

The appellant, a 17 year old youth, appeals against the finding of guilt made against him and against the penalty imposed. He was found guilty after a trial in the Youth Court of having assaulted a female Field Officer employed with the Department of Social Security, contrary to s39(1) of the Criminal Law Consolidation Act 1935. The offence was said to have occurred on 30 June 1997 at a place where the appellant was then living. He was convicted and sentenced by the magistrate who heard the proceedings to a period of six months detention, which was suspended upon his entering into a bond to be of good behaviour for a period of eighteen months. There were other conditions of the bond to which I will refer when dealing with the question of penalty.
All matters seem to have been placed in issue at the trial. Principal among these was the identity of the person who committed the assault on the victim. The appellant did not give evidence. The magistrate accepted the evidence of the victim as to the circumstances of the assault and as to the description which she gave of her assailant. She was asked whether she would recognise the person she described as a young man if she saw him again. She said: “Possibly. Given the length of time that has passed since that date I can’t be 100% sure.” She was giving evidence a little over 11 months after the events in question.
In the light of the answer to which I have just referred, she was very properly not asked to nor did she attempt to give a dock identification of the accused. By refreshing her memory from what she had told the police officer at the time she described her assailant as having “dark hair, about my height - I’m about 5’6” so he would have been about the same height, probably 5’7” or 5’5”, I’m not really sure. I believe at the time he was wearing dark coloured clothing. A fairly thin person, certainly not what I would describe as fat or obese, just a normal, average teenage type youth”. She described him as being “somewhere about 18 to 20” years of age. She was asked without objection:
“Q.... Does that description fit the person in court today?
A. I believe so.”
In cross-examination she was asked to estimate the height of defence counsel. She answered “Possibly 5’10””. She then accepted that counsel was in fact six feet and half an inch tall and that the accused was taller than he was by a couple of inches. She agreed that the accused was possibly five to six inches taller than the description of the person she had previously given.
When dealing with the question of identification, the magistrate reminded himself of the need for caution in dealing with evidence of identification. He concluded that the victim had “proceeded with all appropriate care…

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.

Continue reading L v Police

Details

AGLC: L v Police [1998] SASC 6821
Case: [1998] SASC 6821
Decision Date: 27 August 1998

CaseChat Overview and Summary

In the matter of L v Police, the appellant, a 17-year-old youth, appeals against the conviction and penalty imposed by the Youth Court. The appellant was found guilty of assaulting a female Field Officer from the Department of Social Security, an offence under section 39(1) of the Criminal Law Consolidation Act 1935. The incident occurred on 30 June 1997, and the appellant was sentenced to six months detention, suspended upon entering a bond for good behaviour for eighteen months. The primary legal issues in the appeal concern the sufficiency of the evidence for a finding of guilt beyond reasonable doubt and whether the penalty imposed was manifestly excessive.

The appeal against the finding of guilt argues that the magistrate erred in identifying the appellant as the person who assaulted the victim based solely on the victim's evidence. The court examined the magistrate's reliance on the victim's identification and found that while the victim's description of the assailant was consistent with the appellant, her identification alone was insufficient. However, the court noted that the prosecution's case also relied on circumstantial evidence, including the appellant's threatening phone call to a Centrelink employee, his aggressive behaviour at the Centrelink office on the same day, and the victim's observation of the appellant over an extended period. The court concluded that the combined circumstantial evidence was compelling and supported the finding of guilt.

Regarding the penalty, the appeal argued that the sentence of six months detention, albeit suspended, was excessive. The court highlighted that under the Young Offenders Act 1993, the focus should be on care, correction, and guidance, aiming to develop the youth into a responsible member of the community. The magistrate's decision to impose a custodial sentence was seen as a departure from the intended approach, which should have prioritised non-threatening means of rehabilitation. The court found the sentence to be manifestly excessive and ordered its variation.

The court dismissed the appeal against the conviction but allowed the appeal against the sentence. It set aside the order for detention and imposed an additional condition requiring the appellant to attend for assessment at the Management Assessment Panel for Behaviourally Disordered Persons.

Orders