Nadler v Police

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.