Nadler v Police

Case [2008] SASC 242

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

NADLER v POLICE

[2008] SASC 242

Judgment of The Honourable Justice Gray

3 September 2008

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - COMPETENCE AND COMPELLABILITY - CHILDREN - GENERALLY

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - GENERALLY

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE

Appeal against finding of guilt – appellant charged with assault against complainant, his step-son, pursuant to former section 39(1) Criminal Law Consolidation Act 1935 (SA) – complainant was 12 years old at the time of the alleged offence – appellant claimed that his conduct was necessary to protect his wife, the complainant’s mother, and relied on defence of “defence of another” in section 15 Criminal Law Consolidation Act – prosecution called three witnesses at trial: the complainant, the complainant’s cousin and the complainant’s cousin’s wife who were both eyewitnesses to the incident – defence called three witnesses: the appellant, the complainant’s mother also the appellant’s wife, and the complainant’s sister also the appellant’s step daughter – complainant became upset and distressed at the commencement of his evidence – magistrate undertook an inquiry pursuant to section 21(2) of Evidence Act 1929 (SA) and excused complainant from giving evidence on the ground that there was a substantial risk of serious harm to the relationship between the complainant and the appellant – appeal made application for a permanent stay of proceedings as an abuse of process – magistrate refused submissions on the application and refused to grant stay – appellant found guilty but no conviction recorded – on appeal, appellant complained that the magistrate erred in (i) refusing to hear submissions on the defendant’s application to permanently stay the proceedings on the grounds of abuse of process, and in refusing to grant the permanent stay; (ii) applying the onus and standard of proof; (iii) applying section 15 of the Criminal Law Consolidation Act; and (iv) excusing JS from giving evidence – an extension of time within which to appeal was also sought.

Held, allowing the appeal and dismissing the complaint: extension of time granted – period of delay is very short, explanation for delay is reasonable, and there is no obvious prejudice to other party – magistrate’s failure to hear submissions on the stay application denied the appellant procedural fairness – magistrate did not err in refusing to grant stay – magistrate erred in her application of the burden and standard of proof – magistrate erred in her application of section 15 Criminal Law Consolidation Act – magistrate erred in excusing the complainant from giving evidence – section 21 Evidence Act should be narrowly and strictly to promote the certainty of the criminal trial process – section…

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Nadler v Police [2008] SASC 242
Case
[2008] SASC 242
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CaseChat Overview and Summary

In the case of Nadler v Police, the appellant was charged with assaulting his step-son, JS, and was found guilty by a magistrate. The appellant argued that his conduct was necessary to protect his wife, JS's mother, and relied on the defence of "defence of another." The complainant became upset and distressed during his testimony, leading the magistrate to excuse him from giving further evidence based on a risk of serious harm. The appellant applied for a permanent stay of proceedings, which was refused by the magistrate. The appellant appealed the conviction, arguing several grounds of error, including the magistrate's refusal to hear submissions on the stay application, the application of the burden and standard of proof, the application of section 15 of the Criminal Law Consolidation Act, and the excusal of JS from giving evidence.

The court found that the magistrate's failure to hear submissions on the stay application denied the appellant procedural fairness. However, the court did not find error in the magistrate's refusal to grant the stay. The court found error in the magistrate's application of the burden and standard of proof, as well as the application of section 15 of the Criminal Law Consolidation Act. The court also found error in excusing JS from giving evidence, as the term "child" in section 21 of the Evidence Act refers to a natural child or an adopted child, but not a step-child. The court concluded that the finding of guilt should be set aside due to these errors. However, the court decided to dismiss the complaint in all of the circumstances, as the evidence supported a reasonable hypothesis consistent with innocence, and no conviction was recorded.

The court granted an extension of time for the appeal, as the delay was short, the explanation was reasonable, and there was no obvious prejudice to the other party. The court emphasised that section 21 of the Evidence Act should be narrowly and strictly applied to promote the certainty of the criminal trial process. The court concluded that the appeal should be allowed, and the finding of guilt should be set aside.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Given the Magistrate’s finding about the acts constituting the physical contact between the defendant and JS, and given her acceptance of the “backdrop” against which that conduct occurred and her acceptance of the defendant’s genuine belief for the necessity of that conduct, the Magistrate’s conclusion that the defendant “lost all sense of proportion …[and] used far more force than could ever be reasonably necessary to deal with the threat to her that he perceived in the circumstances as he believed them to be”, is unreasonable and was not supported by the evidence or her Honour’s findings as to the nature of the alleged assault. The appeal should also be allowed on this ground.Exclusion of Evidence of the Complainant – Section 21 of the Evidence Act 1929 (SA) The defendant challenges the Magistrate’s ruling pursuant to section 21(3) of the Evidence Act 1929 (SA), excusing JS from giving evidence at trial. Section 21 of the Evidence Act is in the following terms:(1)A close relative of a person charged with an offence shall be competent and compellable to give evidence for the defence and shall, subject to this section, be competent and compellable to give evidence for the prosecution. (2)Where a person is charged with an offence and a close relative of the accused is a prospective witness against the accused in any proceedings related to the charge (including proceedings for the grant, variation or revocation of bail, or an appeal at which fresh evidence is to be taken) the prospective witness may apply to the court for an exemption from the obligation to give evidence against the accused in those proceedings. (3) Where it appears to a court to which an application is made under subsection (2)— (a) that, if the prospective witness were to give evidence, or evidence of a particular kind, against the accused, there would be a substantial risk of— (i)serious harm to the relationship between the prospective witness and the accused; or (ii)serious harm of a material, emotional or psychological nature to the prospective witness; and (b) that, having regard to the nature and gravity of the alleged offence and the importance to the proceedings of the evidence that the prospective witness is in a position to give, there is insufficient justification for exposing the prospective witness to that risk, the court may exempt the prospective witness, wholly or in part, from the obligation to give evidence against the accused in the proceedings before the court. (3a)If the prospective witness is a young child, or is mentally impaired, the court should consider whether to grant an exemption under subsection (3) even though no application for exemption has been made and, if of opinion that such an exemption should be granted, may proceed to grant the exemption accordingly. (4) Where a court is constituted of a judge and jury— (a) an application for an exemption under this section shall be heard and determined by the judge in the absence of the jury; and (b) the fact that a prospective witness has applied for, or been granted or refused, an exemption under this section shall not be made the subject of any question put to a witness in the presence of the jury or of any comment to the jury by counsel or the presiding judge. (5)The judge presiding at proceedings in which a close relative of an accused person is called as a witness against the accused must satisfy himself or herself that the prospective witness— (a) is aware of his or her right to apply for an exemption under this section; or (b) is incapable, by reason of age or mental impairment, of understanding his or her right to apply for an exemption under this section. (6)This section does not operate to make a person who has himself been charged with an offence compellable to give evidence in proceedings related to that charge. (7) In this section— “close relative” of an accused person means a spouse, domestic partner, parent or child; “domestic partner” means a person who is a domestic partner within the meaning of the Family Relationships Act 1975 , whether declared as such under that Act or not; “spouse”—a person is the spouse of another if they are legally married. Section 21 was introduced into the Evidence Act in 1983,[30] and the definition subsection was amended (in a way which is not presently material) in 2007.[31] In T,T,[32] I canvassed the legislative history to the enactment in some detail.[30] Evidence Act Amendment Act (No.2) 1983 (SA), section 4.[31] Statutes Amendment (Domestic Partners) Act2006 (SA), section 97(2).[32] R v T,T (2004) 90 SASR 567 at [36]-[39].

Decision

Reasons for decision

GRAY J
In my view, the word “child”, appearing in section 21 of the Evidence Act, is a reference to a natural child or an adopted child, but does not include a step-child. Accordingly, JS was not a “child” within the meaning of section 21, and her Honour’s exercise of that discretion was in error. Even if JS was within the scope of section 21, her Honour’s exercise of her discretion miscarried. This ground of appeal is also allowed on this basis.Conclusion This appeal is allowed. The Magistrate erred in her application of the onus and standard of proof. Her simple preference of the evidence of one witness against others was not an appropriate exercise in reaching a conclusion of guilt beyond reasonable doubt. In addition, the Magistrate’s conclusion as to what occurred did not accord with the prosecution witnesses’ evidence. For this reason alone, the trial process miscarried. Further, the Magistrate failed properly to address the defence that the defendant acted in self-defence of another. Finally, the Magistrate was not entitled to exclude JS under section 21 of the Evidence Act from giving evidence. For all of these reasons, the finding of guilt is to be set aside. I have given consideration as to whether, in all of the circumstances, the complaint should be dismissed. The following matters are relevant to the exercise of my discretion. Although the Magistrate’s approach to the evidence was unsatisfactory, she did make a finding of fact that the defendant forced JS to the ground and held him there for a period of time. The evidence was overwhelming that JS was a child who had been physically violent toward his mother. There was a substantial body of evidence that at the time of the incident, JS was behaving in a physically threatening manner toward his mother, sufficient to justify his restraint. Although JS was taken to the Women’s and Children’s Hospital, apart from emotional upset, there was no evidence that he sustained any physical injury whatsoever. In the brief evidence given by JS at the trial, it is apparent that he still wished to have contact with the defendant, and continued to have affection for him. It appears unlikely that JS would wish to give evidence against the defendant at any future trial. Having regard to the evidence and the onus on the prosecution to negative the defence of the defence of another, I have been left with the conclusion that the prosecution had not disproved beyond reasonable doubt a reasonable hypothesis consistent with innocence. A significant period of time has elapsed in this matter. Almost three years have passed since the incident the subject of the charge. The trial before the magistrate was heard over 12 months ago. It is also relevant matter that although a finding of guilt was made against the defendant, no conviction was recorded. The beneficial nature of such an approach is well accepted.[51][51] See eg. R v Briese; Ex parte Attorney-General [1998] 1 Qd R 487 at 491 (Thomas and White JJ).

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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