Parish v Police - [2018] SASC 18

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PARISH v POLICE
[2018] SASC 18
Judgment of The Honourable Justice Lovell
27 February 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL ALLOWED
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
Appeal against conviction.
The appellant was convicted of one count of assault causing harm after a trial in the Magistrates Court. Appellant appealed the conviction - whether the Magistrate's reasons were adequate and whether findings made by the Magistrate were open on the evidence.
Held (allowing the appeal):
1. The Magistrate failed to adequately explain his factual findings.
2. Factual findings made by the Magistrate were not open on the evidence.
Order: Conviction set aside and matter remitted to the Magistrates Court for retrial before a different Magistrate.
Magistrates Court Act 1991 s. 42, referred to.
Fox v Percy (2003) 214 CLR 118, applied.

PARISH v POLICE
[2018] SASC 18
LOVELL J:

Mr Troy Parish (“the appellant”) was in a relationship with Ms Marinke Wiggins (“the complainant”). Ms Wiggins alleged that on 10 April 2015 the appellant subjected her to a series of assaults. The appellant was charged with one count of assault causing harm. The matter proceeded to trial for two days in the Magistrates Court. The complainant gave evidence that during the incident the appellant bit her on the left cheek and then on the bottom lip causing the harm alleged by the prosecution. The appellant denied assaulting the complainant or biting her. On 18 November 2016 the Magistrate convicted the appellant of assault causing harm.
On 8 June 2017 the Magistrate sentenced the appellant to a period of 12 months imprisonment with a non-parole period of eight months, the sentence to be served on home detention bail. The appellant appealed the conviction.
Extension of Time
This appeal was filed on 30 June 2017, more than seven months after the appellant was found guilty on 18 November 2016. Permission to appeal is required from 21 days after the original decision is made. The appellant asked for “such extension of time as may be required, if any” in his filed Notice of Appeal.
The respondent submitted that the delay between the Magistrate’s decision and the commencing of the appeal was significant and that at the time of the appeal being heard the appellant had yet failed to adequately explain the delay. The Appellant eventually submitted material explaining the delay after the appeal had been heard. In its written reply to the further material the Respondent maintained its objection to an extension of time.
On 21 November 2016 counsel for the appellant sent a letter to her instructing solicitor which included acknowledgment of the 21 day period in which to initiate an appeal. Material provided to this Court establishes a miscommunication then occurred between the appellant and his lawyers. Despite that misunderstanding there was still a failure to lodge an appeal within 21 days from…

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 Parish v Police

Details

AGLC: Parish v Police [2018] SASC 18
Case: [2018] SASC 18
Decision Date: 27 February 2018

CaseChat Overview and Summary

In the case of Parish v Police, the appellant was convicted of assault by the Magistrates Court of New South Wales. The complainant alleged that the appellant, her former partner, assaulted her over a period of hours in April 2015. The appellant appealed against his conviction, contending that the verdict was unreasonable and not supported by the evidence. The appeal was heard by the Supreme Court of New South Wales, which found that the conviction was indeed unreasonable and not supported by the evidence. The Court found that the trial Magistrate had failed to adequately assess the credibility of the complainant and appellant and had not provided sufficient reasoning for his findings. The Court set aside the conviction and remitted the matter to the Magistrates Court for a retrial before a different magistrate.

The primary legal issue before the Court was whether the conviction of the appellant was unreasonable or not supported by the evidence. The Court found that the trial Magistrate had not provided sufficient reasoning for his findings and had failed to adequately assess the credibility of the complainant and appellant. The Court found that the evidence did not support the conclusion that the assault had lasted for several hours, and that the complainant's account of the incident was not entirely consistent. The Court also found that the trial Magistrate had not adequately considered the appellant's defence that the complainant had fabricated the allegations against him.

The Court found that the trial Magistrate had erred in his assessment of the credibility of the complainant and appellant. The Court found that the evidence did not support the conclusion that the assault had lasted for several hours, and that the complainant's account of the incident was not entirely consistent. The Court also found that the trial Magistrate had not adequately considered the appellant's defence that the complainant had fabricated the allegations against him. The Court found that the conviction was unreasonable and not supported by the evidence, and set aside the conviction. The Court remitted the matter to the Magistrates Court for a retrial before a different magistrate.

The Court ordered that the conviction of the appellant be set aside and the matter be remitted to the Magistrates Court for a retrial before a different magistrate. The Court found that the trial Magistrate had not provided sufficient reasoning for his findings and had failed to adequately assess the credibility of the complainant and appellant. The Court found that the evidence did not support the conclusion that the assault had lasted for several hours, and that the complainant's account of the incident was not entirely consistent. The Court also found that the trial Magistrate had not adequately considered the appellant's defence that the complainant had fabricated the allegations against him. The Court ordered that the matter be remitted to the Magistrates Court for a retrial before a different magistrate.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I set out the important parts of the evidence. It is not necessary for me to discuss all of the evidence.Evidence of the complainant The complainant gave evidence that she and the appellant had been in a relationship for about six years before the incident in question. From about mid -June 2014 she used to stay with the appellant “off and on”. The appellant lived in a house near Auburn; the house was owned by his aunt and uncle, Janet and Doug Kench. The complainant spent the night of the 9 April 2015 with the appellant. Two of her children, ‘L’ and ‘J’, slept there as well. They were aged approximately 11 or 12 and 13 years old respectively. The complainant also had a daughter ‘C’ but at that time she was living in Victoria. At around 9am the complainant woke up as “Troy had been banging round quite loudly in the kitchen”. The appellant and the complainant had an argument about ‘C’ and then matters “escalated”. The complainant said she wanted to leave. She “grabbed her stuff”, her children and went to get her laptop but decided to go to the toilet first. She went to the laundry to get her “dirty clothes” but “didn’t quite make it” as the appellant hit her from behind. This incident occurred between the toilet and the laundry area. She fell to the ground. The appellant hit her a few more times to the back of the head. He then grabbed her hair and “pushed her head into the ground and into the wall.” The complainant remembered that her head hit the concrete floor. The complainant then alleged that “he continuously hit my head against the wall and the floor”. She asked him to stop. She said she just wanted to leave. He bent over and bit her on the left cheek. The complainant said that by this time the appellant had “started to work up a sweat” and went and “dried himself off in the bathroom”. The complainant started to make “her way up the hallway” when the appellant “came back again”. He hit her in the back of the head once and about four further times to the “stomach or the ribs”. She fell to the ground. This occurred in the hallway. When on the ground the appellant put one hand around her neck and the other hand across her mouth and nose. He threatened her by saying she wasn’t going to see her children and that she was “gonna go to sleep”. She had difficulty in breathing. He then bit her lip and told her that he loved her. She said “that is not what love is”. The appellant let her go and then there was a knock at the door which he answered. It was the appellant’s uncle Doug Kench. The appellant went to his bedroom after opening the door. With the front door open the complainant left the house and walked slowly towards her car passing Mr Kench on the way. Mr Kench by this stage was standing by the gate “near his ute”. She looked at Mr Kench “to like say thank you”. Mr Kench drove off and the appellant approached her car. He told her to go “fetch her children” and “to come back”. She said no, “that was it”. The complainant then collected the two children from the dairy. The complainant had her children then ring two of her friends and arranged to meet them at the park in Auburn. On meeting at the park one friend looked after the two children and the other took the complainant to the Clare Hospital.

Decision

Reasons for decision

While it can be accepted that any assault would be traumatic for the complainant the difference between an assault of a few minutes and a beating that occurred for some hours arguably required more explanation or analysis other than a conclusion that she was “wrong”.Conclusion The issues at trial were largely to be determined by an assessment of the credibility of the complainant and the appellant. The findings of the Magistrate, for the reasons discussed, must be set aside. I am not in a position to assess the credit issues simply from the transcript. The matter must be remitted to the Magistrates Court for a retrial before a different magistrate.Order The conviction is set aside and the matter remitted to the Magistrates Court for retrial before a different magistrate.

Ratio Decidendi

Legal Principle Established

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