SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
LE CORNU v THOMAS (DEWNR)
[2019] SASCFC 154
Judgment of The Full Court
(The Honourable Justice Peek, The Honourable Justice Bampton and The Honourable Justice Lovell)
18 December 2019
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - MISCELLANEOUS MATTERS - JOINT TRIAL
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
Appeal against conviction of five offences contrary to the Marine Parks Act 2007.
The defendants, Le Cornu Sr and Le Cornu Jr, were observed by employees of the Department for Environment and Water to be operating an excavator in a zone of a marine park. An investigation was conducted and each of the defendants participated in a separate electronically recorded interview. The interviews were received into evidence at trial over objection.
Held, per Peek J (Bampton and Lovell JJ agreeing), allowing the appeal:
1. As to Ground 4 (the Judge erred in finding out of court statements by one defendant admissible against the other defendant and vice versa): In some cases, statements made by one defendant in an interview may be used against him or her as evidence going to prove the “common purpose” of the defendants. However, this will not justify the use of narrative statements by one defendant against the other defendant as proof of the charged offence. R v Aoukar (2011) 110 SASR 453; R v Tiplady (1985) 123 LSJS 37; Ahern v The Queen (1988) 165 CLR 87; R v Corak & Palmer (1982) 30 SASR 404; R v Singh et ors [1993] SASC 4109 discussed. By using the post offence narrative in both interviews as general evidence against both defendants, his Honour committed error of law.
2. As to Ground 1 (the reasons are inadequate): the Judge did not analyse the significance of the aspects of the evidence his Honour set out in his reasons for the correct conclusions on the particular counts and the Judge said little as to which submissions were accepted or rejected or for what reasons. Further, the Judge did not reveal the reasoning process by which his Honour concluded that the conduct alleged in Counts 1 to 5 was committed. DL v The Queen (2018) 356 ALR 197; AK v Western Australia (2008) 232 CLR 438 discussed.
3. The inadequacy of reasons means it is not possible for this Court to uphold the findings of guilt despite the error of law. It is not possible to know which statements, in which interview, and to what extent, were used as against which defendant. Pope v Ewendt (1977) 17 SASR 45; Police v Theophilus (2011) 110 SASR 420; Police v Rosales [2017] SASC 118 discussed. Criminal Law Consolidation Act 1935 (SA) s 353(1); Criminal Procedure Act 1921 (SA) s 158(2) considered. Accordingly, the appropriate order is that there…
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- Le Cornu v Thomas (DEWNR) [2019] SASCFC 154
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- [2019] SASCFC 154
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CaseChat Overview and Summary
The legal issues before the Full Court of the Supreme Court of South Australia were whether the Magistrate had erred in law, and if so, whether that error necessitated allowing the appeal. Specifically, the Court had to determine if a concession made by the respondent's counsel, that a ground of appeal was technically made out, meant the appeal must be allowed, or if the appeal could still be dismissed in the particular circumstances.
The Court considered the application of the "proviso" in appeals from the Magistrates Court, noting that the equivalent provision to s 353(1) of the Criminal Law Consolidation Act 1935 (SA) does not exist in the Magistrates Court Act 1991 (SA). Instead, the Court applied the principles established in cases such as *Pope v Ewendt* and *Gazepis v Police*. These authorities indicate that an appeal, even if a legal error is identified, may be dismissed if it can be demonstrated that no miscarriage of justice has occurred. The Court emphasised that it is incumbent upon the respondent to establish that no miscarriage of justice has occurred. Applying this principle, the Court found that the prosecution case on count 9 was overwhelming due to a combination of strong circumstantial and direct evidence, and that the Magistrate would have reached the same decision irrespective of the identified error.
The appeal was dismissed.
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
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Ratio Decidendi
Legal Principle Established
Counsel then carefully developed in detail his contentions as to how the findings of proof of each Count might be salvaged.Consideration In fact, as counsel for the respondent accepted on the hearing of the appeal, technically speaking his concession was that Ground 4 of Appeal was made out and his consequential submission was that the appeal should nevertheless be dismissed in the particular circumstances of this case. It is to be noted at the outset that the common form “proviso” (formerly Criminal Law Consolidation Act 1935 s 353(1) but now Criminal Procedure Act 1921 s 158(2)) only applies to appeals under the Criminal Law Consolidation Act 1935 and that there is no equivalent provision in the MC Act.[22] The correct approach to the above contention in a Magistrates appeal (and hence in the present case) was discussed in Police v Theophilus as follows:[23][22] Police v Rosales [2017] SASC 118, [96].[23] (2011) 110 SASR 420, 438–440.52. In … Pope v Ewendt,[24] Bray CJ … stated that an appeal involving the admission of inadmissible evidence could be dismissed only if that evidence could have had no effect upon the result. His Honour emphasised, as had Napier CJ in the earlier decision in Pelham v Homes,[25] that “this course cannot be adopted unless it is clear that the same result must or would have been achieved if the wrongly admitted evidence had been excluded”.[26] [24] Pope v Ewendt (1977) 17 SASR 45.[25] Pelham v Homes [1928] SASR 105.[26] Pope v Ewendt (1977) 17 SASR 45 at 50.53. The later cases of O’Leary v Dair[27] (White J), Stock v Wierda[28] (Debelle J), Nikolettos v Johnston[29] (Legoe J) and Musico v Police[30] (Mullighan J) are all examples of former justices of the court adopting the approach of Bray CJ in Pope v Ewendt (and indeed that of Napier CJ in the earlier decision in Pelham v Homes[31]) and determining, with appropriate caution, that although a ground of appeal was otherwise made out, the charge had been so clearly proven that it must clearly have been held by the Magistrate to have been proven irrespective of the error which was found to have occurred. 54. In Gazepis v Police,[32] it seems to me that Doyle CJ (with whom Lander and Bleby JJ concurred) in effect adopted much the same approach even though using the slightly different language of miscarriage of justice.[33] His Honour referred to s 42(5) of the Magistrates Court Act 1991 (SA) and stated:[34]Such provisions in this State have been interpreted as not requiring or permitting the court to allow an appeal, despite an error in the court below, if the court is satisfied that there has been no miscarriage of justice: see, for example, Newman v Byrne [1969] SASR 350 at 353, per Mitchell J and O’Leary v Daire (1984) 13 A Crim R 404 at 416, per White J. I deliberately refrain from expressing any view upon the question of whether it is incumbent upon the appellant to demonstrate a miscarriage, or incumbent upon the respondent to demonstrate that none has occurred.55. However, with respect, it is my view that the previous authorities, including the decisions of two previous Chief Justices in Pelham v Homes[35] and Pope v Ewendt[36] respectively, do establish that it is incumbent upon the respondent to demonstrate that, in the language of Gazepis, no miscarriage of justice has occurred. I note that in cases subsequent to Gazepis, and in reliance upon that decision, the language of “miscarriage of justice” has been increasingly used. However, it is important to note that it has been emphasised that it is for the respondent to establish that no miscarriage of justice has occurred. This was the approach taken by Mullighan J in Musico.[37] I also note that in Wait v Police,[38] Besanko J found that the magistrate had erred in placing weight on the defendant’s “failure” to call witnesses in his defence. His Honour then stated:[49]On the appeal under s 42 I must review the evidence and reach my own conclusions giving due weight to the fact that the Magistrate has seen and heard the witnesses. The fact that there is an error by the Court below does not mean that I am required or permitted to allow the appeal if I am satisfied that there has been no miscarriage of justice (Gazepis v Police (1997) 70 SASR 121 per Doyle CJ at 129). I am satisfied that there has been no miscarriage of justice in this case. The magistrate was entitled to accept the evidence of Ms Goodenough and to act on it. It established the guilt of the accused. 56. I propose to take the approach adumbrated by Bray CJ in Pope v Ewendt.[39] Adopting that approach, I have come to the view that the combination of strong circumstantial and strong direct evidence produced a prosecution case on count 9 that was overwhelming. … I am sure that her Honour would, on the basis of the combined circumstantial and direct evidence, have come to the same decision quite irrespective of that particular line of reasoning.[40] [Emphasis added][27] O’Leary v Dair (1984) 13 A Crim R 404 at 416.[28] Stock v Wierda (unreported, Supreme Court, SA, Debelle J, No 2487 of 1990, 21 June 1991).[29] Nikolettos v Johnston (1991) 14 MVR 491.[30] Musico v Police [2003] SASC 26.[31] Pelham v Homes [1928] SASR 105.[32] Gazepis v Police (1997) 70 SASR 121.[33] His Honour cites the two decisions of Newman v Byrne [1969] SASR 350 and O’Leary v Dair (1984) 13 A Crim R 404 in support of the use of that phrase in the context of a dismissal of a magistrates appeal. I note that Newman v Byrne was a decision by Mitchell J in the context of a prosecution appeal against an acquittal by a magistrate where the phrase “miscarriage of justice” may well have been thought appropriate as emphasising the high degree of error and injustice to the prosecution that would have been thought necessary to justify an appeal against an acquittal at a time when the stance against such a form of double jeopardy was much stronger than it is now. In the second decision cited, that of O’Leary v Dair, White J was considering a defence appeal against conviction but, as I read his judgment, his Honour counselled against the importation of a “miscarriage of justice” test from the Criminal Law Consolidation Act 1935 (SA), instead identifying the statement of Bray CJ in Pope v Ewendt as being the correct approach. Thus his Honour stated (at 416):During argument, counsel referred repeatedly to miscarriage of justice and no miscarriage of justice. The Justices Act 1921 (SA) does not contain a provision equivalent to s 353(1) of the Criminal Law Consolidation Act 1935 (SA) which empowers the court to dismiss an appeal (even if the appellant establishes all or some of his grounds of appeal) provided there has been no miscarriage of justice. Perhaps some analogous power of dismissal exists. An appeal may be dismissed if the errors at the hearing could have had no effect on the result: Pope v Ewendt (1977) 17 SASR 45 at 50 per Bray CJ. I hold that the errors complained of in the grounds of appeal (in so far as they were made out) could have had no bearing on the result, since the three convictions were founded upon evidence, which the magistrate believed, more than sufficient to justify them and the findings necessary to support them.I note that White J took the same approach in the later decision in Daly v Medwell (1985) 40 SASR 281 at 292.[34] Gazepis v Police (1997) 70 SASR 121 at 129.[35] Pelham v Homes [1928] SASR 105.[36] Pope v Ewendt (1977) 17 SASR 45.[37] Musico v Police [2003] SASC 26.[38] Wait v Police [2003] SASC 94. His Honour took the same approach in the later decisions in Grey v City of Marion [2005] SASC 92 and Gomez v Police [2005] SASC 64.[39] Pope v Ewendt (1977) 17 SASR 45.[40] I note in passing that in Gomez v Police [2005] SASC 64, Besanko J came to the same conclusion where the magistrate had erred in relation to the application of Browne v Dunn reasoning, being of the view that he had decided the case by reference to whether he was prepared to accept the evidence of the complainant beyond reasonable doubt without necessary resort to such reasoning. Thus his Honour stated (at [23]): The sixth ground of appeal is that the Magistrate erred in saying that it was not put to L that the appellant did not touch her breast under her clothing for a short time. It was certainly put to L that the appellant did not touch or try to undo her clothing and I think it was effectively put to her that the incident involving the touching of her breast did not occur. I think the Magistrate did err but I do not think that it may have given rise to a risk of a miscarriage of justice (Gazepis v Police (1997) 70 SASR 121 per Doyle CJ at 129; Wait v Police [2003] SASC 94 per Besanko J at [49]). Reading his reasons as a whole I think that it is clear that he has decided the case by reference to whether he should accept L’s evidence beyond reasonable doubt and not by reference to what was and was not put to her. I reject the sixth ground of appeal.