Legal Research
Cases
Pezos v Police

Pezos v Police

Case [2005] SASC 500 28 November 2005

Type to search within this case.

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
PEZOS v POLICE
Judgment of The Honourable Justice Debelle (ex tempore)
28 November 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - CONDUCT OF TRIAL JUDGE
Appeal against conviction - appellant convicted of assault - appellant not represented at trial - whether magistrate's conduct permitted a fair and lawful trial - relevant principles - whether magistrate biased - held, no material error on magistrate's part - appeal dismissed.
Criminal Law (Sentencing) Act 1988 s 18A; Mental Health Act 1993 s 23, referred to.
Abram v Bank of New Zealand (1996) ATPR 41-470; Cachia v Hanes (1994) 179 CLR 403; Cooling v Steel (1971) 2 SASR 249; Council of the Municipality of Burwood v Harvey (1995) 86 LGERA 389; Dietrich v The Queen (1992) 177 CLR 292; Gould v Police [2005] SASC 297; Hittmann v Police (1999) 202 LSJS 132; Hopfner v Flavel (1990) 2 ACSR 295; Johnson v Johnson (1997) 139 FLR 384; Martin v Hayes (1992) 163 LSJS 56; MacPherson v The Queen (1981) 147 CLR 512; Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438; R v Calides (1983) 34 SASR 355; R v Gidley [1984] 3 NSWLR 168; R v White (2003) 7 VR 442; R v Zorad (1990) 19 NSWLR 91; Rajski v Scitec Corporation Pty Ltd (unreported, New South Wales Court of Appeal, 16 June 1986); Re Morton; Ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497, considered.

PEZOS v POLICE
[2005] SASC 500
Magistrates Appeals: Criminal

DEBELLE J. On 5 September 2005, the appellant appeared in the Adelaide Magistrates Court charged on complaint with two counts of common assault. The first charge was that he had assaulted Michael Hicks. The second was that he had assaulted Kym Hobbs. It was alleged that both offences had occurred on 19 February 2004, at Athelstone. The appellant pleaded not guilty. After a trial before a magistrate, he was convicted of both offences.
On 19 October 2005, the magistrate sentenced the appellant. He ordered one penalty in respect of both counts pursuant to s 18A of the Criminal Law (Sentencing) Act1988. He ordered that the appellant be imprisoned for a period of three months but suspended that sentence upon the appellant entering into a bond to be of good behaviour for a period of 18 months. He ordered the appellant to pay court fees and levies totalling $291.25.
The appellant appeals against the conviction. He does not appeal against sentence.
The prosecution case was that, on the morning of 19 February 2004, police had received a complaint about the appellant’s behaviour. Two police officers went to his home. They cautioned the appellant and left. About one hour later, police were again called to the appellant’s home. On this occasion, four police officers went to his home,…

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 Pezos v Police

Details

AGLC: Pezos v Police [2005] SASC 500
Case: [2005] SASC 500
Decision Date: 28 November 2005

CaseChat Overview and Summary

The appellant, Pezos, was convicted of assault and appealed against both his conviction and sentence. The appellant was not legally represented at the trial and argued that the trial judge's conduct rendered the trial unfair and unlawful, leading to the conviction being quashed. The central issue was whether the magistrate's conduct permitted a fair and lawful trial and, if not, whether it demonstrated any form of bias on the part of the magistrate. The appellant contended that the magistrate's conduct amounted to material error, which deprived him of a fair trial.

The court examined the principles that govern the conduct of trial judges to determine whether any error occurred that could be considered material. It was established that a trial judge must remain impartial and must not give the impression of bias, even if the trial is fair. The court found that the magistrate's conduct, though perhaps not ideal, did not rise to the level of material error. The magistrate's remarks were not such that they would lead a fair-minded lay observer to conclude that the magistrate might be biased. Furthermore, the court held that there was no evidence of actual bias or partiality on the part of the magistrate.

Consequently, the court dismissed the appeal. The magistrate's conduct did not result in a material error, and there was no bias or partiality demonstrated in the trial. The conviction and sentence remained intact.

Orders