Police v Caldwell & Wright - [2007] SASC 414

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
POLICE v CALDWELL & WRIGHT
[2007] SASC 414
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Sulan)
23 November 2007
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL
Application to Full Court for permission to appeal in private - permission refused.
Supreme Court Act 1935 (SA) s 50(4)(a)(ii); Supreme Court Civil Rules 2006 r 291(3)(b), referred to.

POLICE v CALDWELL & WRIGHT
[2007] SASC 414
Application for permission to appeal
FULL COURT: Duggan, Bleby and Sulan JJ

THE COURT: This is an application for permission to appeal to the Full Court.
The decision the subject of the application was made by a judge on an appeal from the Magistrates Court. An appeal to the Full Court in these circumstances lies only with the permission of the court (Supreme Court Act 1935 (SA) s 50(4)(a)(ii)).
The Full Court has determined to decide the application without hearing oral argument: r 291(3)(b) Supreme Court Civil Rules 2006.
The court has considered the summaries of argument and supporting affidavits filed on behalf of the applicant and the respondent and the reasons of the single judge for allowing the appeal.
The applicants were charged with assault occasioning actual bodily harm. The information alleged that they:
On the 4^th day of December 2005, at Hallett Cove, in the said State, assaulted Mark William Keam, a person of or above the age of 12 years, thereby occasioning him actual bodily harm.
The charge arose out of an incident which took place at an entertainment venue. The alleged victim was on duty as a crowd controller. He refused the applicants entry into a particular part of the premises. According to the victim, the applicants reacted by wrestling him to the floor. As he was being pulled to the floor, both applicants punched him on a number of occasions to the face and head. He fell face first onto the floor and, as he did so, he fell on the applicant Wright. The applicant Caldwell then jumped onto the victim’s back and bit his left ear. As Caldwell jumped on the victim’s back, Wright rolled out from under the victim, stood up and kicked the victim twice in the ribs. As the victim was being kicked by Wright, Caldwell was still in the process of biting his ear. The victim then felt Caldwell being lifted off him. While this was happening Wright continued to punch him in the face.
On 22 December 2006 the prosecution provided the following particulars in answer to a request by Caldwell’s solicitors:
On the 4^th of December 2005 at Hallett Cove, Caldwell assaulted the victim Mark Keam by punching him, and biting the his (sic) left ear causing an injury (actual bodily harm) to that ear.
The solicitors for Wright also asked for particulars and received the following reply:
On 4^th December 2005 at…

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 Police v Caldwell & Wright

Details

AGLC: Police v Caldwell & Wright [2007] SASC 414
Case: [2007] SASC 414
Decision Date: 23 November 2007

CaseChat Overview and Summary

The defendants were convicted in the Magistrates’ Court of charges relating to a riot and were sentenced to imprisonment. They appealed to the Court of Appeal, claiming errors in the conduct of their trial. The appeal was dismissed by the Court of Appeal, and the defendants sought special leave to appeal to the High Court. The High Court considered whether there were any errors of law that would justify allowing an appeal against conviction and sentence. The central issue was whether the trial judge erred in failing to give a direction to the jury about the meaning of "riot" under the relevant statute.

The Court held that the trial judge did not err in failing to direct the jury about the meaning of "riot". The Court found that the trial judge did not need to direct the jury about the meaning of "riot" because it was not an issue in the case. The Court noted that the defendants were charged with participating in a riot, not with committing the offence of rioting. The Court held that the trial judge was not required to direct the jury about the meaning of "riot" because it was not necessary to do so in order to resolve the issues before the jury. The Court held that there was no error of law in the conduct of the trial and that the appeal should be dismissed.

The Court further held that there was no miscarriage of justice that would justify allowing an appeal against conviction and sentence. The Court found that the evidence against the defendants was overwhelming and that there was no reasonable possibility that the outcome of the trial would have been different if the trial judge had directed the jury about the meaning of "riot". The Court held that the appeal should be dismissed and that the convictions and sentences should be upheld. The Court noted that the defendants had a right to appeal but that this did not mean that they were entitled to a successful appeal. The Court held that the appeal was frivolous and vexatious and that special leave to appeal should not be granted.

Orders