Lyons v Police

[2009] SASC 355

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

LYONS v POLICE

[2009] SASC 355

Judgment of The Honourable Justice Gray

23 November 2009

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS AND PRACTICE OF COURT ON HEARING - REMISSION FOR REHEARING

Appeal against conviction - defendant and appellant charged with offences of aggravated assault and contravening a domestic violence restraining order - defendant convicted of charges and sentenced to three months imprisonment, suspended on entry into 12 month good behaviour bond of $11.00 - defendant appealed against order on basis that no plea of guilty entered.

Held: appeal allowed - defendant did not plead guilty - defendant not afforded opportunity to adduce evidence in support of position prior to conviction and sentence - order of Magistrate set aside - matter remitted to differently constituted Magistrates Court for hearing and determination.

Criminal Law Consolidation Act 1935 (SA) s 20(3); Domestic Violence Act 1994 (SA) s 15(1); Summary Procedure Act 1921 (SA) s 67, s 68, s 69 and s 103(3), referred to.
Police v Long [2004] SASC 381, considered.

LYONS v POLICE
[2009] SASC 355

Magistrates Appeal

Criminal

GRAY J.

1. This is an appeal against conviction.  The notice of appeal was filed out of time.

2. The defendant and appellant, Johnathon Lyons, was charged on Information with the offences of aggravated assault pursuant to section 20(3) of the Criminal Law Consolidation Act 1935 (SA) and contravening a domestic violence restraining order pursuant to section 15(1) of the Domestic Violence Act 1994 (SA).

3. On 19 August 2009, the defendant was convicted of the charges and sentenced by a Magistrate to three months imprisonment, suspended on entering into a 12 month good behaviour bond of $11.00.  The terms of the bond mandated that the defendant be of good behaviour and comply with all conditions of the bond, that he be under the supervision of a probation officer or community corrections officer for a period of 12 months and that he continue to work with the Drug and Alcohol Services of South Australia and undertake the Cross Border Violence Intervention Program. 

4. When sentencing, the Magistrate remarked:

   On the assault matter, you should not have lost your temper like that.  You knew about what had already happened to [the victim].  In relation to this you will get three months imprisonment suspended on a $11 good behaviour bond for twelve months, to continue working with DASSA and to undertake the Cross Border Violence Intervention Program.

   Registrar to notify the Cross Border Remote Area Violence Intervention Program of the referral at their offices in Alice Springs.

5. The defendant appealed against the whole of the order on the basis that he did not enter a plea of guilty.

   Background

6. The aggravated assault was said to have been perpetrated against the defendant’s domestic partner on 29 January 2009.  The defendant was said to have struck his partner in the face with a rake during an argument, causing injury to the bridge of her nose and a graze to her lower right forearm.  The assault was also alleged to have occurred in contravention of a domestic violence restraining order restraining the defendant from assaulting his partner.

   The Appeal

7. On appeal it was submitted that at the time of sentencing on 19 August 2009, the defendant intimated through his counsel that he wished to plead not guilty to the offences charged.  As noted, it was on this occasion that the Magistrate proceeded to conviction and sentence.  It was contended that the Magistrate erred in proceeding to convict and sentence the defendant without hearing any evidence after the defendant had expressed an intention to enter a plea of not guilty.  It was said that this error was a denial of procedural fairness amounting to a miscarriage of justice.  Counsel for the defendant submitted that in these circumstances, the conviction should be set aside and the matter remitted to the Magistrates Court for hearing and determination before a different Magistrate.

8. Counsel for the Director conceded that the defendant did not plead guilty to the charges as contended.  It was said that the appropriate course in these circumstances was to remit the matter to a differently constituted Magistrates Court.

9. The charges against the defendant constituted minor indictable offences and the defendant did not elect to proceed with a trial in a superior court.  As a consequence, the charge is to be dealt with in the same way as a charge of a summary offence.[1] 

   [1]    Section 103(3) of the Summary Procedure Act 1921 (SA).

10. The statutory procedure to be followed in these circumstances is outlined in the following provisions of the Summary Procedure Act 1921 (SA):

    67—When defendant pleads guilty, court to convict or make an order

    (1)     When the defendant is present at the hearing the substance of the complaint shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted or why an order should not be made against him (as the case may be).

    (2)     If the defendant admits the truth of the complaint, and shows no sufficient cause why he should not be convicted, or why an order should not be made against him, the court shall convict him or make an order against him accordingly.

    68—Procedure on plea of not guilty

    (1)     If the defendant does not admit the truth of the complaint the court shall proceed to hear—

    (a)the complainant and his witnesses and any other evidence which he adduces in support of his complaint; and

    (b)the defendant and his witnesses and any other evidence which he adduces in his defence; and

    (c)any evidence which the complainant adduces in reply if the defendant adduces any evidence other than as to his, the defendant's, general character.

    (2) Subject to the provisions of section 12 of the Evidence Act 1929 every witness shall be examined upon oath.

    (3)     The practice before the Court upon the hearing of any complaint with respect to the examination and cross-examination of witnesses and the right of addressing the court in reply, or otherwise, shall be in accordance, as nearly as may be, with the practice for the time being of the Supreme Court upon the trial of an action.

    69—After hearing the parties court to convict or dismiss

    When the parties and their evidence have been heard, the court shall consider the whole matter and determine the same, and shall convict or make an order against the defendant or dismiss the complaint, as the case may require: Provided that the court may, at any time before the matter has been finally determined, without determining the same permit the complaint to be withdrawn, upon such terms (if any) as it thinks fit.

11. As outlined above, the Magistrate when sentencing did not comply with these procedural requirements.  The defendant was not afforded the opportunity to adduce any evidence in support of his position prior to his conviction and sentencing.  The procedural requirements as outlined are mandatory.[2]  The Magistrate’s failure to comply with these requirements constituted a material error. 

    [2]    See eg Police v Long [2004] SASC 381 at [23].

    Conclusion

12. Having regard to the foregoing, I extend time in which to appeal.  I allow the appeal.  I set aside the whole of the order of the Magistrate.  I remit the matter to a differently constituted Magistrates Court for hearing and determination.