SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MARINER v POLICE
Judgment of The Honourable Justice Besanko
21 December 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - ARREST AND DETENTION - EFFECTING ARREST
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - ASSAULTING, RESISTING, HINDERING, OR OBSTRUCTING POLICE OFFICER
Appeal against conviction and sentence - appellant convicted of assault occasioning actual bodily harm, resisting police, assaulting police, failing to state name and address and behaving in a disorderly manner - where the Magistrate sentenced the appellant to 12 months imprisonment with a non-parole period of 6 months to be served on top of a sentence of 12 months imprisonment with a non-parole period of 6 months imposed by a magistrate for other offending - whether the Magistrate erred in finding that self-defence was not open on the evidence - whether the Magistrate erred in finding that there was evidence capable of negativing a defence of self-defence - whether the Magistrate erred in concluding that the police constable was acting in execution of his duty - whether the police constable effected an unlawful arrest - whether the Magistrate erred in finding the appellant guilty of both resisting police and assaulting police - considerations of the principles of arrest - whether the Magistrate erred in finding that the appellant failed to state his name and erred in finding that the appellant had a reasonable opportunity to state his name - whether the sentence imposed by the Magistrate was manifestly excessive - appeal dismissed.
Magistrates Court Act 1991 s 42; Criminal Law Consolidation Act 1935 ss 40, 15, 43; Summary Offences Act 1953 ss 6(2), 6(1), 74A, 7(1), 75, 78, 79A; Criminal Law (Sentencing) Act 1988 s 18A, referred to.
Christie v Leachinsky [1947] AC 573; Mackalley's Case (1611) 9 Co Rep 65b; Hull v Nuske (1974) 8 SASR 587; Hallion v Samuels (1978) 17 SASR 558; Barrington v Austin [1939] SASR 130; Hamra v Police (1999) 205 LSJS 172, discussed.
R v Stafford (1976) 13 SASR 392; R v Schutze & Cornelius (1994) 179 LSJS 418; Coleman v Power (2004) 209 ALR 182; Hermel v Police (2000) 76 SASR 336, considered.
MARINER v POLICE
[2004] SASC 432Magistrates Appeal
BESANKO J: This is an appeal against conviction and sentence. The appeal is brought pursuant to s 42 of the Magistrates Court Act 1991.
Andrew Mariner is the appellant and he appeals to this Court against five convictions recorded against him by a Magistrate. On 10th September 2004 the appellant was convicted of the following offences:
1.assault occasioning actual bodily harm (s 40 Criminal Law Consolidation Act 1935 (“CLCA”).
2.resisting a member of the police force in the execution of his duty (s 6(2) Summary Offences Act 1953 (“SOA”).
3.assaulting a member of the police force in the execution of his duty (s 6(1) SOA).
4.being…
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- AGLC
- Mariner v Police [2004] SASC 432
- Case
- [2004] SASC 432
- Decision Date
CaseChat Overview and Summary
The court examined the principles of arrest, the conduct of the police officer during the arrest, and the evidence presented. It assessed the Magistrate's findings on self-defence, the legality of the arrest, and the reasonableness of the sentence. The court found that the Magistrate's decision was supported by the evidence and that the sentence imposed was not manifestly excessive. It concluded that the appeal against both the conviction and the sentence should be dismissed, upholding the findings and sentence of the Magistrate.
The court's reasoning was grounded in the evidence provided and the legal standards applicable to the case. It found no basis to overturn the Magistrate's determinations on the grounds of self-defence, the legality of the arrest, or the proportionality of the sentence. Consequently, the appeal was dismissed in its entirety. The court's decision stands, affirming the convictions and the sentence as appropriate given the circumstances of the case.
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