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…

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 Pedley v Police

Details

AGLC: Pedley v Police [2008] SASC 214
Case: [2008] SASC 214
Decision Date: 7 August 2008

CaseChat Overview and Summary

In the case of Pedley v Police, the appellant was convicted of assault causing harm and subsequently appealed against the conviction. The appellant argued that his legal representation was compromised by a prior conflict of interest, that his counsel failed to advise him on a plea bargain, and that the conviction was against the weight of the evidence. The appeal was heard in the Supreme Court of South Australia.

The central legal issues before the court were whether the appellant's legal representation was compromised by a conflict of interest, whether the appellant was adequately advised on a plea bargain, and whether the conviction was against the weight of the evidence. The court needed to determine whether the appellant's solicitors had a conflict of interest in representing him given their prior representation of the victim's husband. Additionally, the court had to consider whether there was any evidence of a discussion regarding a plea bargain and whether the magistrate's findings were supported by the evidence presented.

The court found that there was no conflict of interest as the prior representation of the victim's husband by the appellant's counsel's firm was limited to engaging interstate counsel, and the appellant's counsel had no involvement in that matter. The victim's husband was not involved in the current proceedings, and thus, no conflict existed. The court also found that there was no evidence in the transcript of any discussion on a plea bargain. Regarding the weight of the evidence, the court noted that the magistrate had the advantage of seeing and hearing the witnesses. The court held that there was no reason to interfere with the magistrate's findings of fact, as they were based on good common sense and supported by independent witnesses.

The appeal was dismissed, and the conviction of assault causing harm was upheld. The court did not find any grounds to overturn the magistrate's decision, affirming the appellant's conviction.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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