Marks v Police; Roach v Police - [2019] SASC 50

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MARKS v POLICE; ROACH v POLICE
[2019] SASC 50
Judgment of The Honourable Justice Nicholson
4 April 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - MISCARRIAGE OF JUSTICE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - ASSAULT OCCASIONING ACTUAL BODILY HARM
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE - GENERALLY
Appeal against findings of guilt by a Magistrate. The appellants' charges arose from the same incident and the trials and appeals were heard together.
The appellants travelled from Victoria with their sports team on an end of season trip and were involved in an incident at a hotel. Both appellants were charged with one count of aggravated assault (count 1) and one count of aggravated assault causing harm (count 2). Following a trial before a Magistrate, the appellant, Marks, was convicted of both counts and the appellant, Roach, was convicted of only count 2.
On appeal, both appellants complained that the failure of the prosecution to call particular witnesses resulted in a miscarriage of justice. Marks further contended that the failure of his trial counsel to properly present his case in a number of respects denied him a fair trial.
Roach contended that the Magistrate failed to adequately direct herself in respect of various matters and that her Honour's reasons were inadequate in various respects. Roach contended that the Magistrate erred in failing to find that the element of causation of the complainant's injuries in respect of count 2 had been made out by the prosecution.
Held, dismissing both appeals, none of each appellant's grounds of appeal has been made out.
Criminal Law Consolidation Act 1935 (SA) s 5AA, s 15, s 20, referred to.
Fox v Percy (2003) 214 CLR 118; Craig v The Queen [2018] HCA 13; TKWJ v The Queen (2002) 212 CLR 124, applied.
Martin v The Department of Transport, Energy and Infrastructure [2010] SASC 141; Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293; R v Sabet [2018] SASCFC 18; Corfield v Police [2017] SASC 170; Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; Police v Kyriacou (2009) 103 SASR 243; R v Hurst [2011] SASCFC 152; R v Kennedy [2017] SASCFC 170; R v Birks (1990) 19 NSWLR 677, discussed.
Jones v Dunkel [1959] HCA 8; Ali v The Queen (2005) 79 ALJR 662; Nudd v The Queen (2006) 80 ALJR 614, considered.

MARKS v POLICE; ROACH v POLICE
[2019] SASC 50
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

These reasons concern two appeals against convictions recorded in…

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.

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Details

Case: [2019] SASC 50
Decision Date: 4 April 2019

CaseChat Overview and Summary

The case of Marks v Police and Roach v Police involved appeals against convictions for assault occasioning actual bodily harm, following a dispute at a nightclub in Adelaide. The primary issue before the Supreme Court was whether the convictions were safe and whether there was a miscarriage of justice. Both appellants argued various grounds of appeal, including the adequacy of the Magistrate's reasons and the effectiveness of their legal representation. The court had to determine whether the Magistrate's findings were supported by the evidence and whether there was a miscarriage of justice in the conduct of the trial.

The court first examined the adequacy of the Magistrate's reasons, applying principles from previous cases. It was established that the Magistrate was not required to provide exhaustive explanations but needed to identify critical factual issues, relevant evidence, and the reasoning process. The court found that the Magistrate's reasons were sufficient and that there was no miscarriage of justice in the manner the trial was conducted. The court dismissed several grounds of appeal related to counsel's decisions, as these fell within the ambit of counsel's professional discretion.

Ultimately, the court concluded that none of the grounds of appeal were substantiated. Both appeals were dismissed, and the convictions were affirmed as safe and reasonable based on the evidence presented. The CCTV footage, while not conclusive, did not contradict the prosecution's case, and the Magistrate's reliance on the testimony of key witnesses was justified. The court held that the CCTV footage provided no direct support for or against the claims of self-defence or the additional altercations that occurred off-camera.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Magistrate was correct to dismiss any suggestion of self-defence by Roach in the succinct manner she did. I now turn to consider the appeal grounds for Roach. Given my reasons to this point, some of the grounds can be dealt with briefly.Grounds 1 and 2 – asserted inadequacy of reasons and inadequacy of directions in respect of the evidence Roach contends that the fundamental requirements for adequate reasons had not been observed by the Magistrate and that this is so notwithstanding the apparent length and content of the published reasons. Counsel has pointed to a number of features of or particular criticisms directed to aspects of the reasons. The requirements for adequate reasons have been variously described on numerous occasions by appellate courts but the following statement by Stanley J in R v Sabet,[30] is sufficient given the circumstances of the case against Roach.Those statements of principle in AK v Western Australia were affirmed and applied by this Court in R v Cotton[31] and again in R v Ricciardi.[32]The matters upon which reasons are required and the extent of those reasons, will vary depending on the issues and the evidence in the case.[33] It can be seen that the obligation imposed on the trial judge extended to a requirement that the judge identify the critical factual issues relevant to her verdict, identify the evidence relevant to the resolution of each issue and explain the process of reasoning by which the issue was resolved. However, a minute explanation of each step in the reasoning process and detailed findings on every issue of fact is not required.[34] There is no obligation on a judge to refer to every argument which has been put.[35] A trial judge is entitled to make a finding that a particular witness’ evidence is rejected, without identifying, or indeed without there being any particular reason for rejecting the witness’ version over and above acceptance of conflicting evidence. It is not essential that any specific shortcomings in the witness’ evidence be identified. Where a decision rests on a matter of impression, there is no requirement for the judge to elaborate upon his or her reasons for decision.[36] There will be cases in which little can be given by way of explanation.[37] (Footnotes in original)[30] [2018] SASCFC 18 at [29].[31] [2015] SASCFC 17.[32] [2017] SASCFC 128, (2017) 128 SASR 571. [33] R v Ricciardi [2017] SASCFC 128 at [109], (2017) 128 SASR 571 at 593.[34] R v Keyte [2000] SASC 382 at [48] and [54], (2000) 78 SASR 68 at 78-80.[35] R v Power [2003] SASC 77 at [76], (2003) 141 A Crim R 203 at 212.[36] R v Power [2003] SASC 77 at [59], (2003) 141 A Crim R 203 at 210-211; R v Beard [2004] SASC 411 at [13].[37] R v Power [2003] SASC 77 at [64], (2003) 141 A Crim R 203 at 211. In this case, insofar as the charge against Roach concerning the assault of West was concerned, there were no contentious issues of law to be ruled upon. The relevant issues were essentially factual and were: whether or not Roach in fact struck West in the alcove (although this factual issue has disappeared given Roach’s concession that he did strike West); whether or not any such striking was lawful, that is, was not committed for a defensive purpose; and whether or not a joint criminal enterprise could be inferred between West and at least one other person[38] such that Roach was responsible in law for all of the injuries suffered by West whether or not caused by Roach’s punch. [38] On the Magistrate’s findings the other participants in the joint criminal enterprise were Marks and a third unidentified person.

Decision

Reasons for decision

NICHOLSON J

Grounds 2.5 (failure to apply for an adjournment until the matter fully prepared), 2.6 (failure to adequately address the court) and 2.7 (making of improper concessions) all concern judgments made by counsel and falling within his remit. It has not been established that any of the decisions made or not made by counsel in these respects were forensic decisions without any rational basis. As such, Marks should be held to counsel’s decisions. In any event, no miscarriage of justice arising from the manner by which the trial was conducted in each of these respects has been demonstrated.Conclusion None of the grounds of appeal raised by either Roach or Marks has been made out. I dismiss both appeals. Whilst neither appellant has raised a ground of appeal in the nature of the convictions being unsafe or unreasonable having regard to the evidence, on my review of the evidence and of the Magistrate’s reasons, I have no misgivings about the Magistrate’s findings.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

The CCTV vision is consistent with a finding that one punch was delivered to West by, as now admitted, Roach. It does not provide direct support for a second punch to or any kicking of West but is not inconsistent with either. Nor is there any direct support for or against the admitted altercation between Marks and Lubajo which must have happened off camera. As such, there is no direct support for or against Marks’ claim of self-defence. The vision as recorded by the CCTV is not sufficient, of itself, to prove the prosecution case against Roach or its case against Marks beyond reasonable doubt. However, it is not inconsistent with either case. The prosecution cases depended on the Magistrate accepting the evidence of Hourigan, West and Lubajo and, in particular, the latter.Consideration of the Roach appeal Roach’s appeal grounds need to be considered in the context of the manner by which the Roach defence was conducted at trial and his concession made on appeal. The primary defence at trial was that Roach did not hit West. Lubajo was directly cross-examined by counsel for Roach[17] to this effect. Lubajo had earlier given evidence that he had seen a person hit Hourigan on the dance floor and that he saw that same man punch West in the alcove. The cross-examination on this topic proceeded as follows.QAs I understand your evidence you say that Mr West was struck in the face by that person with his right fist.AYes.QI put it to you that didn’t happen. I suggest that’s wrong what you say about that.AI say no.QI suggest you’re making that up … you’re making up the fact that the same man hit Mr West.AThat is the same man that hit Mr West – did see it with my eyes.Counsel for Roach did not cross-examine Lubajo in an attempt to lay a foundation for a submission of defensive purpose. Nor did counsel cross-examine West or Hourigan to this effect.[17] Who was also counsel on appeal. It is to be inferred that counsel’s instructions at least to this point were to the effect that Roach was not the person who hit West. The written submissions provided to the Magistrate by counsel at the end of the trial substantially comprised a discussion of general legal principles under the headings The Charges, Cause Harm, Self Defence and Defence of Another, Inadequate Police Investigation and Prosecution Failure to Call Witnesses. There was a modest reference to the evidence with respect to Cause Harm, Prior Inconsistent Statements and Prosecution Failure to Call Witnesses. The section on Self Defence and Defence of Another consisted of five and a half pages single spaced devoted exclusively to extracts from other cases dealing with other facts. There is no mention of any evidence that might be said to have raised for consideration (and requiring the prosecution to exclude beyond reasonable doubt) a defensive purpose on behalf of Roach. In his oral submissions counsel argued that there was no evidence, of who struck [West] such as to cause the injuries that the prosecution allege, the harm which are the serious injuries to him.This was counsel’s primary submission. In making it in these terms, counsel elided two critical issues; first, had it been proved that Roach hit West at all and second, if so, had it been proved that Roach is legally responsible for the serious injuries suffered by West. Counsel then submitted that if the Magistrate were not to be so satisfied, her Honour should move to:the lesser alternative charge of basic assault for the one punch and … has to be satisfied that [Roach] is guilty of that in that he didn’t act defensively.(Emphasis added)