Lazzaro v Police - [2010] SASC 229

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LAZZARO v POLICE
[2010] SASC 229
Judgment of The Honourable Justice Kelly
23 July 2010
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - PARTICULAR CASES - CONTROL OVER PROCEEDINGS - REFUSAL OF ADJOURNMENT
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS AND PRACTICE OF COURT ON HEARING - REMISSION FOR REHEARING
Appellant appealed against decision of magistrate - appellant was convicted of two breaches of bail, two counts of aggravated assault, one count of assault and one count of driving without due care - where evidence relevant to witness credibility received by defence counsel during trial - where application for adjournment to consider evidence and to consider recalling witnesses refused by the Magistrate - whether significant possibility accused would have been acquitted if evidence admitted.
Held: Appeal allowed - prosecution case to some extent corroborated but credibility of the complainant was central to proof of charges – not able to conclude that there is no significant chance appellant would have been acquitted had evidence been led.

LAZZARO v POLICE
[2010] SASC 229
Magistrates Appeal: Criminal
KELLY J:
Introduction

After a short trial in the Magistrates Court at Port Adelaide the appellant Vincenzo Lazzaro was convicted of two breaches of bail, two counts of aggravated assault, one count of assault, and one count of driving a motor vehicle without due care. All of the charges for which the appellant was convicted arose out of events which occurred on 25 September 2007.
There is one discrete ground of appeal which arises out of the refusal of the learned magistrate to allow an adjournment for the purpose of enabling defence counsel for the appellant to consider recalling the prosecution’s main witness, and/or the appellant. The application for an adjournment was made in circumstances where defence counsel became aware of a series of letters written by the prosecution’s main witness to the appellant after the events the subject of the charges had occurred.
The trial commenced on 2 February 2010. The transcript records that immediately after the lunch break, after the prosecution had closed its case and the appellant had concluded his evidence, defence counsel applied for a short adjournment to enable her to consider material she had received over the luncheon break with a view to the recall of either her own client, that is the appellant, and/or the prosecution’s main witness, Karen Lindsay.
The material which the defence sought to adduce was in the form of 13 letters allegedly written by Ms Lindsay to the appellant in the period from about March 2008 to September 2009.
All that the transcript reveals is that at 2.15 pm defence counsel made two applications, first to recall the appellant to ask him further questions in relation to his head injuries, the second for an adjournment to view the letters received from the appellant over the lunch break with a view to recalling Ms Karen Lindsay. Both applications were refused.
The trial continued. The appellant’s mother was called to give evidence on behalf of the defence and the evidence was completed on the same day as the trial commenced.
On 12 February 2010 the Magistrate convicted the appellant of the two breaches of bail, two counts of aggravated assault, one count of basic assault and one count of driving a motor vehicle without due care. The appellant was acquitted of a seventh charge of assaulting a child under the age of 12 years. The question which arises on this appeal is whether the refusal to permit the recall of the appellant, and the refusal to permit a short adjournment to enable counsel for the appellant to read and consider the content of the letters handed to her over the lunch break, amounts to an error which would justify the intervention of the appellate court.
For the purpose of considering the issues raised on appeal I admitted both affidavits of Elena Leonardos sworn on 14 July 2010 and 20 July 2010 as to the events which occurred during the trial on 2 February 2010. Ms Leonardos’ affidavit reveals that the complainant, Karen Lindsay, was in custody at the time she gave evidence on 2 February 2010.
The undisputed background to the events of 25 September 2007 was that Ms Lindsay and the appellant had been in a relationship for some time prior to 25 September 2007. Attached to the affidavit of 14 July 2010 was a report from the neuropsychologist Dr Mark Reid dated 7 April 2010. That report reveals that the appellant was the victim of two motor vehicle accidents in February 2006 and again in May 2008. Dr Reid concluded that the appellant demonstrated difficulty in a range of cognitive skills, most importantly in connection with his short term memory. The report from Dr Reid was produced by way of explanation as to the difficulties in obtaining instructions from the appellant who is described as a poor historian.
Although the appellant had been in possession of the letters from Ms Lindsay at the outset of the trial, he did not draw that fact to his counsel’s attention until the luncheon break. Hence the application by the appellant’s then counsel for a short adjournment to consider her position.
It was not disputed by the respondent, nor could it be, that the content of the letters was potentially relevant to the credit of Ms Lindsay. Had the letters been produced in a timely fashion by the appellant, then it would have been permissible for the appellant to have asked the complainant in cross‑examination questions relating to that correspondence.
The real question is whether the evidence, had it been admitted, would have given rise to a significant possibility that the accused would have been acquitted.
In considering this question the sequence of events after 25 September 2007 is relevant. There was an independent witness to some of the charges in respect of which the appellant was convicted. That witness, Ms Lindsay’s aunt, complained to the police the very next day, however the fact is the complainant gave evidence that she did not wish to report the matter to the police and in fact she did not report the matter until 22 April 2008, when she provided a statement to the police. This was well after the first letter was sent and about one month after the second letter was sent to the appellant. The appellant was not reported for the offences until 10 June 2008.
The respondent has submitted that in view of the fact that there is, to some extent, an independent witness to at least four of the counts in respect of which the appellant was convicted, that even had the letters been admitted, the result would not have been any different.
There is some force in the respondent’s argument. The evidence of Margaret Lindsay, the complainant’s aunt, was directly corroborative of the complainant’s account of events which gave rise to counts three to seven inclusive. They did not however directly corroborate the complainant’s account of the events giving rise to counts one and two, although the evidence of Margaret Lindsay was generally supportive of the evidence of the complainant.
However it is undeniable that the evidence of the letters, if admitted, was relevant to the complainant’s credibility. The letters, on one view, reveal a volatile relationship between the complainant and the appellant. In some the complainant displayed quite hostile intent towards the appellant. I have already referred to the fact that some of the letters were written prior to and around the time when the complainant first gave a statement to the police in April 2008.
It is very difficult to accurately assess what course the trial may have followed had the evidence been admitted. It is true that Margaret Lindsay’s evidence provides powerful corroboration on five of the seven counts on which the appellant was tried. Nevertheless the Magistrate could not convict the appellant unless satisfied that Karen Lindsay’s evidence was both truthful and accurate. At the time of the trial she was serving a sentence for armed robbery. The issue of her credibility was central to the prosecution case.
After due reflection, I am not able to conclude that there is no significant possibility that the appellant would have been acquitted had the evidence been admitted. I consider the only proper course is to allow the appeal and remit the matter back to the Magistrates Court for rehearing.
Since there is to be a retrial, I wish to add some brief comments concerning the acquittal of the appellant on count six. In my view, the Magistrate’s reasoning which led to the acquittal of the appellant on count six was erroneous. If a defendant acts with the necessary intention for an offence of assault then it matters little whether he mistakenly strikes or punches another person. In this case the Magistrate evidently was satisfied beyond reasonable doubt that at the time when the appellant struck the child he intended to strike Margaret Lindsay. It matters little that by mistake or a misdirected act he struck the wrong person. In those circumstances the appellant ought to have been convicted on count six as well.
For the reasons I have given I make the following orders:
1The appeal is allowed.
2The orders made by the Magistrate on 12 February 2010 are set aside.
3The information is remitted to the Port Adelaide Magistrates Court for trial before a different magistrate.