Mahon v Police - [2021] SASC 109

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
MAHON v POLICE & ANOR
[2021] SASC 109
Judgment of the Honourable Justice David
16 September 2021
COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - REASONABLE APPREHENSION OF BIAS GENERALLY
COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - DISPENSING WITH RULE AGAINST BIAS - WAIVER
This is an appeal against the sentence imposed by a Magistrate on 17 December 2020 in the Adelaide Magistrates Court. During sentencing remarks, the Magistrate indicated that one of the victims of the appellant's offending was known to the Magistrate. The appellant appeals on the basis this was apprehended bias by the Magistrate. The appellant's solicitor took no objection at the time. The respondent contends that the lack of objection by the appellant constitutes a waiver of the apprehended bias rule.
Held, per David JA, allowing the appeal:

1. The appellant did not waive his right to complain of apprehended bias.
2. The sentencing process miscarried.
3. The matters are remitted to another Magistrate for resentence.

Bail Act 1985 (SA) s 17; Criminal Law Consolidation Act 1935 (SA) ss 85, 134, 139 & 144; Controlled Substances Act 1984 (SA) ss 18 & 33L; Firearms Act 2015 (SA) s 31; Summary Offences Act 1953 (SA) s 41, referred to.
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; Vakauta v Kelly (1989) 167 CLR 568; Zanker v Kupsch [2014] SASCFC 13, considered.

MAHON v POLICE & ANOR
[2021] SASC 109
Magistrates Appeal: Criminal

David JA: This is an appeal against the sentence imposed by a Magistrate on 17 December 2020 in the Adelaide Magistrates Court. On that date, the Magistrate sentenced the appellant for numerous offences, not all of which are the subject of this appeal. For ease of reference, the offences and the respective sentences imposed, which form the subject of this appeal, are set out in the table below:

File Number & Date Offences Sentence imposed after discount for guilty plea

AMC-20-5022
12/01/2019 Making off without payment
Maximum Penalty: Imprisonment for 2 years[1]
5 months reduced by 40% to 3 months (cumulative)

AMC-20-9841
05/10/2019 Unlawful possession
Maximum Penalty: $10,000 or imprisonment for 2 years[2] 5 months reduced by 40% to 3 months (cumulative)

AMC-19-10114
08/10/2019 Deceive another to benefit self – Basic (two counts)
Maximum Penalty: Imprisonment for 10 years[3] 10 months reduced by 40% to 6 months (cumulative)

AMC-20-3866
23/02/2020 Dishonestly deal with property without consent – Basic (five counts)
Maximum Penalty: Imprisonment for 10 years[4]
10 months reduced by 30% to 7 months (cumulative)

AMC-20-5188
18/04/2020 Damage building or motor vehicle (not graffiti or unknown) – Basic
Maximum Penalty: Imprisonment for 10 years[5]
Dishonestly deal with property without consent – Basic
Maximum Penalty: Imprisonment for 10 years[6]
5 months reduced by 30% to 3 months and 2 weeks (cumulative)

AMC-20-5962
03/06/2020 Dishonestly deal with property without consent – Basic (4) (counts 1, 4, 5 and…

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 Mahon v Police

Details

AGLC: Mahon v Police [2021] SASC 109
Case: [2021] SASC 109
Decision Date: 16 September 2021

CaseChat Overview and Summary

The appellant, Mahon, was convicted and sentenced by a Magistrate for various criminal offences. He appealed to the Court of Appeal against his sentence on the basis that the sentencing process miscarried due to apprehended bias on the part of the sentencing Magistrate. The appeal was heard by the Court of Appeal, with David JA presiding. The primary legal issue before the court was whether the appellant had waived his right to complain of apprehended bias by not raising the issue at the earliest opportunity. The court also had to determine if the sentencing process indeed miscarried due to the apprehended bias and, if so, what the appropriate remedy was.

The court considered the principle that a party cannot be permitted to stand by and allow a court to proceed on the assumption that it is acting fairly, only to complain of bias after the decision has been made. However, the court found that the appellant had not waived his right to complain of apprehended bias. The court emphasised that the appellant had raised the issue of bias at the earliest opportunity available to him, which was at the appeal stage. The court held that the appellant’s conduct did not amount to a waiver of his right to complain of bias. Furthermore, the court found that the appellant had established a reasonable apprehension of bias on the part of the sentencing Magistrate. The court concluded that the sentencing process had miscarried due to this apprehended bias.

The court allowed the appeal, holding that the appellant had not waived his right to complain of bias and that the sentencing process had indeed miscarried. The court remitted the matter to another Magistrate for resentence. This decision highlights the importance of addressing apprehended bias at the earliest opportunity and the court's commitment to ensuring fair sentencing processes.

Orders

Orders of the court

Held, per David JA, allowing the appeal:

1. The appellant did not waive his right to complain of apprehended bias.

2. The sentencing process miscarried.

3. The matters are remitted to another Magistrate for resentence.

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

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File Number & Date	Offences	Sentence imposed after discount for guilty plea
AMC-20-5022 12/01/2019	Making off without payment Maximum Penalty: Imprisonment for 2 years[1]	5 months reduced by 40% to 3 months (cumulative)
AMC-20-9841 05/10/2019	Unlawful possession Maximum Penalty: $10,000 or imprisonment for 2 years[2]	5 months reduced by 40% to 3 months (cumulative)
AMC-19-10114 08/10/2019	Deceive another to benefit self – Basic (two counts) Maximum Penalty: Imprisonment for 10 years[3]	10 months reduced by 40% to 6 months (cumulative)
AMC-20-3866 23/02/2020	Dishonestly deal with property without consent – Basic (five counts) Maximum Penalty: Imprisonment for 10 years[4]	10 months reduced by 30% to 7 months (cumulative)
AMC-20-5188 18/04/2020	Damage building or motor vehicle (not graffiti or unknown) – Basic Maximum Penalty: Imprisonment for 10 years[5] Dishonestly deal with property without consent – Basic Maximum Penalty: Imprisonment for 10 years[6]	5 months reduced by 30% to 3 months and 2 weeks (cumulative)
AMC-20-5962 03/06/2020	Dishonestly deal with property without consent – Basic (4) (counts 1, 4, 5 and…