Pedley v Police - [2008] SASC 214

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PEDLEY v POLICE
[2008] SASC 214
Judgment of The Honourable Justice Anderson
7 August 2008
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MATTERS CONNECTED WITH CONDUCT OF DEFENCE - LEGAL REPRESENTATION
Appellant convicted of assault causing harm - appeal against conviction - victim's husband previously represented by appellant's counsel's firm - appellant complains that his solicitors had a conflict of interest and should not have represented him at his trial - appellant complains that his counsel did not advise him on a plea bargain - appellant complains that conviction was against the weight of the evidence.
Held: No conflict of interest - prior representation of victim's husband limited to engaging interstate counsel - appellant's counsel had no involvement with the prior matter - victim's husband not involved with this matter - no evidence in the transcript of any discussion on a plea bargain - magistrate had the advantage of seeing and hearing the witnesses - no reason to interfere with magistrate's findings of fact - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 20(4), referred to.
Kallinicos & Anor v Hunt & Ors (2005) 64 NSWLR 561; M v The Queen (1994) 181 CLR 487; MG v R [2007] NSWCCA 57, considered.

PEDLEY v POLICE
[2008] SASC 214
Magistrates Appeal: Criminal
ANDERSON J:
Introduction

This is an appeal against conviction. Mr Pedley was charged with two offences committed in December 2006, namely, assault causing harm and damage property. The matter proceeded to trial in September 2007 and the appellant was convicted of assault causing harm. The second count was dismissed. In February 2008 the appellant was required to enter into a good behaviour bond for two years. A restraint order against the appellant was also imposed to protect the victim of the assault.
Background
The appellant was charged that on 18 December 2006 at Willunga he assaulted Alison Canino in that he intentionally applied force directly to her and thereby caused her harm contrary to s 20(4) of the Criminal Law Consolidation Act1935 (SA).
The prosecution case against the appellant was that he physically assaulted the victim after a verbal exchange and that there was no issue of self-defence. The defence case was that the appellant did not deliberately strike the victim but that he blocked her following an assault by her on him and that in so doing he was acting in self-defence.
The incident occurred shortly after 8.00 pm on 18 December 2006 at the Alma Hotel on Main Road, Willunga. The victim attended the hotel on that day with her children to pick up a present from the barman. She was aware that the appellant was at the hotel and she was also aware that there had been some sort of incident between the appellant and her son on an earlier occasion. During the course of the evening she came across the appellant and, after a verbal exchange, the appellant moved towards the victim and struck her once in the area of the face. He also swung the victim into a pillar causing her to hit her head.
At trial, oral evidence was given by the victim, and from four other civilian witnesses. Although noting that there were some inconsistencies between the prosecution witnesses’ evidence, the magistrate accepted their evidence. She notes at [62]:
I am satisfied that the other four prosecution witnesses were all honest witnesses giving evidence of their observations of this incident to the best of their recollection.
Her Honour also stated (at [65]) that she found the victim to be “loose with her description” of what happened. The magistrate was only prepared to accept her evidence if it was corroborated or confirmed by the other witnesses. The magistrate did not accept the appellant’s evidence, as she did not consider him to be a witness “of the truth” (at [64]).
The magistrate was satisfied beyond reasonable doubt that the appellant struck the victim and swung her into a pole. She also found that the appellant did not act in self defence. The appellant was convicted of count 1.
On 1 February 2008, the magistrate heard submissions on sentencing. The appellant had different representation on this occasion. The magistrate handed down a sentence that the appellant be released on a bond to be of good behaviour for a period of two years. The amount of the bond is $500. A restraint order was also imposed against the appellant, the conditions of which require him not to have any contact with the victim. The court costs and victims of crime levy were also imposed on the appellant.
The appeal
The original notice of appeal was filed by Mr Pedley on his own behalf in which he sought the following orders:
The appellant seeks a re-trial at a different venue with a view to dismissing all charges based on insufficient evidence or a mis-trial, due in part to appellant’s own counsel’s legal incompetence failing to adequately represent him.
Mr Borick QC, who appeared for Mr Pedley, applied to substitute new grounds of appeal. He had previously given notice of these grounds to the Crown Solicitor, who did not oppose the amended grounds of appeal.
The amended grounds of appeal are:
1.The appellant complains that his solicitors had a conflict of interest and should not have represented him at his trial, and that their decision to continue to act constituted a material irregularity.
2.The appellant complains that his counsel did not fully and properly advise him on a suggestion made by the learned trial magistrate that he should give consideration to a plea bargain.
3.The learned trial magistrate erred in that she failed to properly take into account the following matters in arriving at her decision:
3.1    the fact that the alleged victim was the aggressor;
3.2    the fact that the incident was totally unexpected and took place in a very short period of time (in the order of five seconds);
3.3    the fact that members of the alleged victim’s family had been extremely antagonistic towards the appellant on occasion preceding this incident;
3.4    the fact that an incident occurred in which the alleged victim’s sunglasses were knocked from her head;
3.5    the fact that the police failed to interview various other independent witnesses who were present when the incident took place;
3.6    the fact that the appellant’s counsel did not cross-examine prosecution witness Zed Every as to why he had not signed his witness statement.
The particulars of grounds 1 and 2 were supported by an affidavit filed by the appellant. The affidavit, in the main, dealt with questions of the conflict of interest, but it also descended into matters which I regard as irrelevant, argumentative and bordering on vexatious. Mr Borick acknowledged that he could not rely on these parts of the affidavit, and accordingly indicated that he only relied on those parts that dealt with the alleged conflict of interest. The affidavit of the appellant was therefore tendered on that basis.
Mr Longson, who appeared for the respondent, tendered affidavits from both Mr Michael John Jandy and Mr Michael James Dadds, who are both solicitors in Mr Dadds’ practice of Michael Dadds & Associates.
Ground 1: Conflict of interest
Mr Borick submitted that there was a clear conflict of interest on the information available. The connection which he said gave rise to the conflict was that the victim in this matter was Alison Canino, and that previously in 1999 Mr Dadds had acted for Mr Charlie Canino, who was married to this victim.
Mr Dadds’ affidavit deposes to the fact that Mr Canino had been arrested interstate and refused bail, and Mr Dadds’ engaged interstate counsel to represent Mr Canino on a bail application in the Supreme Court in Victoria. That was the only connection between Mr Dadds’ firm and Mr Canino. Mr Charlie Canino is not involved in any way in any of the allegations in relation to this matter.
It was conceded by Mr Borick that Mr Jandy had no connection at any time with Mr Charlie Canino. He suggested there was an appearance, on an objective review of the facts, that there was a conflict of interest because of the one involvement with Mr Dadds’ firm approximately eight years prior to the current matter.
It was not disputed by Mr Longson that the test in relation to conflict of interest was objective. He emphasised, however, that it was an objective test having regard to what a reasonably informed observer would conclude. He referred to a New South Wales Court of Criminal Appeal case, MG v R [2007] NSWCCA 57 at [72], which cited with approval the following passage by Brereton J from Kallinicos & Anor v Hunt & Ors (2005) 64 NSWLR 561 at [76]:
The test to be applied in this inherent jurisdiction is whether the fair minded, reasonably informed members of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the administration of justice, including the appearance of justice.
Mr Longson submitted that in the present case, if a reasonably informed person was aware of the limited extent of the representation of Mr Canino; the fact that Mr Jandy had nothing to do with Mr Canino; and that he did not know him, then that reasonably informed person would not come to the view that there was any conflict of interest. I agree with that submission.
In response, Mr Borick submitted that the test expounded in Kallinicos does not require consideration of what a reasonably informed person would take into account, but rather, that it merely requires that person to be aware of a conflict. I do not agree with this analysis of the test.
In summary, I find that there was no conflict of interest in this case. Mr Dadds’ representation of Mr Canino was limited to engaging interstate counsel in a bail application. Mr Jandy had no involvement with Mr Canino and, furthermore, Mr Canino, had no involvement in the allegations in relation to this matter. I therefore reject ground 1 of the appeal.
Ground 2: Advice regarding a plea bargain
Mr Borick conceded that the information regarding this ground of appeal was scarce. There was nothing on the transcript regarding any discussions between the magistrate and counsel. The affidavit from the appellant on this particular aspect is vague. He says that the learned magistrate “approached” Mr Jandy, himself and the prosecution prior to the commencement of the trial, suggesting that as the prosecution had several witnesses waiting to testify, did he wish to plead to a lesser charge. He effectively said that Mr Jandy did not acknowledge this discussion and seek instructions on it. In his affidavit in response, Mr Jandy denies all those events.
I have not sought a report from the magistrate because I do not think it necessary. There is nothing in the transcript and the alleged discussion could only have taken place in open court if the appellant was present, as he suggests, and it is disputed by Mr Jandy. The objective evidence by way of the transcript supports Mr Jandy. I therefore dismiss ground 2 of the amended notice of appeal.
Ground 3: The appeal on the weight of the evidence
In relation to ground 3, Mr Borick conceded the obvious difficulties in attempting to overturn findings of fact based on the magistrate’s impression of witnesses and her assessment of the evidence. The reasons provided by the magistrate are comprehensive. Her Honour deals in considerable detail with the factual situation and summarises the cases of both sides. In particular, she summarises and makes findings on important factual matters where there were inconsistencies between the witnesses. In relation to the victim, Her Honour said at [65]:
She did minimise the extent to which she verbally provoked the situation and in view of her unreliability in relation to some aspects, such as how many hands she held up and where the blows were received, I am only prepared to accept her evidence if it is corroborated or confirmed by the other witnesses whose evidence I have accepted.
Her Honour then instructed herself on the matters on which she had to be satisfied beyond reasonable doubt. She deals with these matters at paragraphs [67] to [71] inclusive. Those findings are, in my view, all available on the evidence. Mr Borick’s complaint is really limited to the fact that Her Honour should have found in the appellant’s favour.
The question of the role of an appellate court when asked to determine whether a verdict is unsafe or unsatisfactory was considered by the High Court in M v The Queen (1994) 181 CLR 487 at 493. It was held that when an appellate court is asked to find that, although there is evidence to convict, the verdict is unsafe and unsatisfactory, it must give high regard to the fact that the trier of fact has had the benefit of seeing and hearing the witnesses.
I am not prepared to interfere with the learned magistrate’s findings of fact. Indeed, it seems to me that they are based on good common sense, Her Honour having had the advantage of seeing and hearing the witnesses. In addition, the independent witnesses corroborated the version of the incident given by the victim. I therefore reject this ground of appeal.
Conclusion
For the reasons set out above, I reject all grounds of appeal and dismiss the appeal.