Mariner v Police - [2004] SASC 432

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 432
Magistrates 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 10^th 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…

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 Mariner v Police

Details

AGLC: Mariner v Police [2004] SASC 432
Case: [2004] SASC 432
Decision Date: 21 December 2004

CaseChat Overview and Summary

In the matter of Mariner v Police, the appellant contested his conviction and sentence, which included a 12-month imprisonment term with a non-parole period of 6 months for various offences such as assault occasioning actual bodily harm, resisting police, assaulting police, failing to state name and address, and behaving in a disorderly manner. The Magistrate's sentence was imposed on top of a previous sentence for other offences. The appeal focused on several key legal issues, including whether the Magistrate correctly determined that self-defence was not available to the appellant, whether the evidence supported a negative finding on self-defence, and if the police officer was acting in the execution of his duty. Additionally, the appeal addressed whether the arrest was lawful, whether the appellant was correctly found guilty of resisting and assaulting police, and whether the Magistrate erred in concluding that the appellant failed to state his name and had a reasonable opportunity to do so.

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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I do not think the sentence imposed by the Magistrate is manifestly excessive.Conclusion I dismiss the appeal against conviction and the appeal against sentence.

Ratio Decidendi

Legal Principle Established

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