Lobosco v Police - [2021] SASC 4

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
LOBOSCO v POLICE
[2021] SASC 4
Judgment of the Honourable Justice Bleby
28 January 2021

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
EVIDENCE - ADDUCING EVIDENCE - COURSE OF EVIDENCE - EVIDENCE BEFORE TRIAL - AFFIDAVITS AND STATUTORY DECLARATIONS
CRIMINAL LAW - EVIDENCE - CREDIBILITY - EVIDENCE IN CONTRADICTION
Appeal against conviction.
The appellant was convicted of aggravated assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) following a trial before a Magistrate.
On the night of 29 December 2018, the appellant was travelling in a taxi in Edwardstown. The taxi stopped behind a car in which the alleged victim, Mr Robinson, was supervising his daughter as she was learning to drive. On the prosecution case, the victim’s daughter stalled the car at a set of traffic lights, prompting the taxi driver, Mr Antonopoulos, to honk his horn. Mr Robinson got out of the car, went around to the back and pointed to the ‘L’ plate. He returned to the car, where his window was down. Meanwhile, the appellant exited the taxi and approached the front passenger window where Mr Robinson was now sitting. There was an exchange between the appellant and Mr Robinson, during which the appellant produced an extendable baton from a pouch. As Mr Robinson got out of the car and stood up, the appellant struck him multiple times with the baton.
The appellant’s case was that he made no physical contact with Mr Robinson at the car, and never had anything in his hands. Rather, Mr Robinson challenged him and pushed the door open. He pushed back, but Mr Robinson, who was a larger man, pushed his way out. The appellant fled. Mr Robinson was the aggressor and chased him to a nearby car park.
The appellant appeals the conviction on the following grounds:
1. Having admitted the 4 page statement of Jim Antonopoulos as having been agreed, the learned trial magistrate erred in making a number of findings inconsistent with the contents of that statement;
2. In the alternative the defendant was deprived of procedural fairness, as a result of the prosecution neither calling the witness as a prosecution witness, nor presenting the witness for cross-examination;
3. The learned trial Magistrate erred in directing herself that it was open for her to place greater weight on the witnesses 'whose evidence I heard and accept';
4. In the alternative, the learned Magistrate erred in failing to warn counsel as to her view on the status of the agreed statement.
Held, granting an extension of time to file the Notice of Appeal and dismissing the appeal:
1. The fact that a witness statement is tendered without challenge to any of its contents does not make the contents of the statement immutable and thereby bind the prosecution;
2. The…

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 Lobosco v Police

Details

AGLC: Lobosco v Police [2021] SASC 4
Case: [2021] SASC 4
Decision Date: 28 January 2021

CaseChat Overview and Summary

The appellant, in this case, was convicted of aggravated assault causing harm by a Magistrate. The appellant appealed the conviction on the grounds that the Magistrate made findings inconsistent with the contents of an agreed statement from a witness, that the defence was deprived of procedural fairness, that the Magistrate erred in directing herself that it was open for her to place greater weight on witnesses she heard, and that the Magistrate failed to warn counsel of her view on the status of the agreed statement. The appeal was dismissed by the Supreme Court. The court held that the fact that a witness statement is tendered without challenge to any of its contents does not make the contents of the statement immutable and thereby bind the prosecution. The magistrate was entitled to make findings inconsistent with the contents of the affidavit of Mr Antonopoulos. The defence proceeded in a manner consistent with the understanding that the affidavit was always going to be subject to scrutiny by the magistrate. It was not necessary for the magistrate to warn the parties as to her view of its status. The appeal was dismissed.

Orders

Orders of the court

Appeal against conviction.

The appellant was convicted of aggravated assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) following a trial before a Magistrate.

On the night of 29 December 2018, the appellant was travelling in a taxi in Edwardstown. The taxi stopped behind a car in which the alleged victim, Mr Robinson, was supervising his daughter as she was learning to drive. On the prosecution case, the victim’s daughter stalled the car at a set of traffic lights, prompting the taxi driver, Mr Antonopoulos, to honk his horn. Mr Robinson got out of the car, went around to the back and pointed to the ‘L’ plate. He returned to the car, where his window was down. Meanwhile, the appellant exited the taxi and approached the front passenger window where Mr Robinson was now sitting. There was an exchange between the appellant and Mr Robinson, during which the appellant produced an extendable baton from a pouch. As Mr Robinson got out of the car and stood up, the appellant struck him multiple times with the baton.

The appellant’s case was that he made no physical contact with Mr Robinson at the car, and never had anything in his hands. Rather, Mr Robinson challenged him and pushed the door open. He pushed back, but Mr Robinson, who was a larger man, pushed his way out. The appellant fled. Mr Robinson was the aggressor and chased him to a nearby car park.

The appellant appeals the conviction on the following grounds:

1. Having admitted the 4 page statement of Jim Antonopoulos as having been agreed, the learned trial magistrate erred in making a number of findings inconsistent with the contents of that statement;

2. In the alternative the defendant was deprived of procedural fairness, as a result of the prosecution neither calling the witness as a prosecution witness, nor presenting the witness for cross-examination;

3. The learned trial Magistrate erred in directing herself that it was open for her to place greater weight on the witnesses 'whose evidence I heard and accept';

4. In the alternative, the learned Magistrate erred in failing to warn counsel as to her view on the status of the agreed statement.

Held, granting an extension of time to file the Notice of Appeal and dismissing the appeal:

1. The fact that a witness statement is tendered without challenge to any of its contents does not make the contents of the statement immutable and thereby bind the prosecution;

2. The magistrate was entitled to make findings inconsistent with the contents of the affidavit of Mr Antonopoulos;

3. The defence proceeded in a manner consistent with the understanding that the affidavit was always going to be subject to scrutiny by the magistrate. It was not necessary for the magistrate to warn the parties as to her view of its status.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In any event, I have already concluded that the defence proceeded in a manner consistent with the understanding that the affidavit was always going to be subject to scrutiny by the magistrate. In light of that, and given my interpretation of the magistrate’s treatment of the Antonopoulos affidavit, it was not necessary for the magistrate to warn the parties as to her view of its status. Ground 4 fails.Conclusion Having previously granted an extension of time to file the Notice of Appeal, I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.