Main v Police

[2009] SASC 367

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

MAIN v POLICE

[2009] SASC 367

Judgment of The Honourable Justice Gray

26 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 entered pleas of guilty to charges of resist arrest and disorderly behaviour - convictions recorded in relation to those charges as well as charge of damage property - conviction in relation to damage property recorded in error.

Held: appeal allowed - conviction for charge of property damage set aside - matter remitted to Magistrates Court.

MAIN v POLICE
[2009] SASC 367

Magistrates Appeal

GRAY J:

Introduction

1. This is an appeal against a conviction recorded by a Magistrate with respect to the offence of damage property.  The notice of appeal was filed out of time.

2. On 21 November 2007, the defendant and appellant, Steven Allan Main, appeared before the Magistrate in relation to the offences of damage property, resist arrest and behave in a disorderly manner.  The defendant through his counsel pleaded guilty to the offences of resist arrest and disorderly behaviour.  However, convictions were recorded in relation to all charges.   The defendant appeals against the conviction recorded with respect to the damage property charge.

3. Counsel for the Crown conceded that the defendant did not plead guilty to the charge of damage property.  It was said that the appropriate course in these circumstances was to set aside the conviction for the charge of damage property and remit the matter to the Magistrates Court.

4. When sentencing the defendant with respect to the offences of resist arrest and disorderly behaviour on 21 November 2007, the sentencing Magistrate observed:

   You have pleaded guilty to disorderly behaviour which occurred on the 8 November 2006 and resisting police on the 29 January 2007.  In a sense there is nothing outstanding about either of those offences.

   I am aware that you have presented before the court on other mattes which are contested and I make no assumption in respect of those charges. …

5. By a report to this Court, the Magistrate acknowledged that the recording of a conviction in relation to the charge of damage property was an error.

6. It is clear on the basis of the material before the Court, that the defendant did not plead guilty to the charge of damage property.  The recording of the conviction in relation to that charge was an oversight and in error.

   Conclusion

7. Having regard to the foregoing, I extend time in which to appeal.  I allow the appeal.  I set aside the conviction for the charge of damage property recorded on 21 November 2007.  I remit the matter to the Magistrates Court for hearing and determination of the charge of damage property.