Plunkett v DIETMAN - [2010] SASC 359

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PLUNKETT v DIETMAN
[2010] SASC 359
Reasons for Decision of The Honourable Justice Gray
24 December 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - CREDIBILITY AND WEIGHT - PARTY'S FAILURE TO GIVE OR CALL EVIDENCE
Appeal against conviction - defendant convicted following trial by Magistrate of two offences in contravention of the Fisheries Management Act 2007 (SA), arising from his possession of Southern Rock Lobster - lobster located at defendant's residential premises - where defence case that defendant had no knowledge of the existence of the lobster at his home - where partner of defendant and co-occupant of the residential premises not called to give evidence - where information amended at the conclusion of the trial - whether Magistrate in error in drawing adverse inference against defendant for not calling partner as a witness - whether amendment to information resulted in prejudice to the defendant - whether error of fact made by the Magistrate concerning the extent of police surveillance of the defendant's home - whether Magistrate in error in rejecting defendant's evidence on the topic of an alleged admission made to Fisheries Officers on arrest.
Held: appeal dismissed - Magistrate in error in application of Jones v Dunkel when drawing adverse inference against defendant for failing to call partner as a witness - notwithstanding that error, prosecution case was overwhelming and the convictions were sustained by the evidence - no prejudice occasioned by the defendant by the amendment to the information - no other errors demonstrated.

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - GENERALLY
Appeal against sentence - defendant previously sentenced in the District Court with respect to an offence of trafficking drugs that occurred at the same time as the Fisheries Management Act offending, to a term of three years and six months imprisonment, with a non-parole period of two years - defendant sentenced by the Magistrate for the Fisheries Management Act offending to a term of imprisonment of six months with a non-parole period of three months, to be cumulative on the drug offending sentence - whether Magistrate erred in not ordering that the sentence for the Fisheries Management Act offending be served concurrently, or partially concurrently, with the drug offending sentence
Held: appeal dismissed - the two sets of offending were of an entirely different character and involved separate and distinct incursions into crime - there is nothing about the circumstances of the offending that would support the imposition of concurrent or partially concurrent sentences - no error demonstrated.
Fisheries Management Act 2007 (SA) s 72(2)(a), s 74(1)(b) and s 100; Fisheries Management (General) Regulations 2007 (SA) Sch 3 r 4 and Sch 2 cl 4; Summary…

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 Plunkett v DIETMAN

Details

AGLC: Plunkett v DIETMAN [2010] SASC 359
Case: [2010] SASC 359
Decision Date: 24 December 2010

CaseChat Overview and Summary

The case of Plunkett v DIETMAN involves an appeal against both conviction and sentence. The appellant was convicted in the Magistrates Court of South Australia of two offences under the Fisheries Management Act 2007 (SA) related to the possession of Southern Rock Lobster. The appeal against conviction challenges the Magistrate's decision to draw an adverse inference against the appellant for failing to call his partner as a witness, and questions whether an amendment to the information at the conclusion of the trial prejudiced the appellant. The appeal against sentence contests the Magistrate's decision to impose a cumulative sentence for the Fisheries Management Act offences, arguing that the sentence should have been concurrent or partially concurrent with the sentence for drug trafficking.

The central legal issues in this case revolve around the admissibility and impact of evidence in criminal trials, the application of the principles of Jones v Dunkel, and the appropriateness of sentencing in relation to concurrent and cumulative sentences. The court had to determine whether the Magistrate erred in drawing an adverse inference against the appellant for not calling his partner as a witness, and whether the amendment to the information at the conclusion of the trial prejudiced the appellant. Additionally, the court examined whether the Magistrate erred in imposing a cumulative sentence for the Fisheries Management Act offences instead of a concurrent or partially concurrent sentence.

The court found that while the Magistrate erred in applying the principles of Jones v Dunkel when drawing an adverse inference against the appellant, the prosecution's case was overwhelming, and the convictions were sustained by the evidence. The court also concluded that there was no prejudice to the appellant from the amendment to the information. Regarding the sentence, the court held that the two sets of offences were distinct and separate, and there was no error in imposing a cumulative sentence. The court dismissed both the appeal against conviction and the appeal against sentence, finding that the overwhelming evidence supported the convictions and that the cumulative sentence was appropriate given the nature of the offences.

The final orders of the court were to dismiss both the appeal against conviction and the appeal against sentence, thereby affirming the original decisions of the Magistrates Court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

I note that in the course of the appeal, it became apparent that counsel for the appellant did not have a copy of the transcript from the trial and apparently had not had the opportunity to review the transcript. I enquired whether counsel for the appellant would like the opportunity to review the transcript and he replied that he did not. Notwithstanding this response, at my suggestion, at the end of the hearing, counsel for the respondent agreed to make his copy of the transcript available to the appellant’s counsel. The matter was then adjourned and I indicated that I would call the matter on the following morning for further submissions if counsel for the appellant wished to make any further submission following his review of the transcript overnight. The appellant’s counsel as a consequence made further submissions.Conclusion on the Conviction Appeal My review of the transcript has allowed the conclusion that the prosecution case was overwhelming. The appellant was the co-owner of the premises where the lobster were located. The lobster were frozen. The bags had particular markings and within the appellant’s bedroom a quantity of similar, unused bags were located. The Police surveillance established that in the two weeks leading up to the seizure of the lobster, the only persons seen in and about the premises were the appellant and Ms Jackway. In particular, Mr Conron, was not seen and nor for that matter was his vehicle seen in the vicinity of the premises. It was not the respondent’s case that Ms Jackway was in possession of the lobster. The majority of the lobster were located in a freezer in a shed at the rear of the premises. The electricity supply for the freezer came from the general supply to the premises. It was not in dispute that the appellant with Ms Jackway was responsible for the payment of the electricity supply. Lobster pots and paraphernalia related to the catching of lobster were found about the premises and were the property of the appellant. Further, there was the admission made by the appellant which carried the necessary inference that the lobster were his. I have reached the conclusion that the submission of the respondent should be accepted, that the prosecution case was overwhelming and that in those circumstances the appeal against the convictions should be dismissed. Appeal Against Sentence As earlier noted, the appellant had been sentenced with respect to an offence of trafficking in drugs that occurred at the same time as the Fisheries Management Act offending, to a term of immediate imprisonment of three years and six months. A non-parole period of two years had been fixed. That sentence commenced on 10 October 2008. A further period of four months was imposed on 2 July 2009 for offences of unlawful possession ordered to be served cumulatively on the sentence of three years and six months. The non-parole period remained unchanged. The appellant was released on parole in early October 2010. With respect to the offending the subject of the within appeal, the appellant was convicted on the first count, but no penalty was imposed. The reason for this was that the second offence dealt with the same lobster as the first offence.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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