Police v Caruso - [2021] SASC 58

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
POLICE v CARUSO
[2021] SASC 58
Judgment of the Honourable Justice Parker
21 May 2021

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
This is an appeal by the police against a finding made by a Magistrate that there was no case to answer.
The respondent was charged with assaulting a prescribed emergency worker contrary to s 20AA(3) of the Criminal Law Consolidation Act 1935 (SA) in relation to events alleged to have occurred on 29 August 2020. At the close of the prosecution case, the respondent submitted that there was no case to answer. On 16 December 2020, the Magistrate held that there was no case to answer.
The appellant appealed to this Court on two grounds:
1.The trial court erred in failing to properly have regard to the evidence and inferences to be drawn from the sworn evidence of the witness Constable Rylee O’Grady.
2.The trial court erred in finding that there was no case to answer (either on the charged offence against s 20AA(3) of the Criminal Law Consolidation Act 1935 or upon the charge of an attempt to commit that offence).

Held, per Parker J, allowing the appeal:
1.The Magistrate erred in overlooking the evidence of the complainant that the respondent spat straight at her while looking at her.
2.The Magistrate erred in misconstruing the relevant question to be asked, that being, not whether the respondent’s saliva could have come into contact with the complainant, but whether he had threatened such conduct in circumstances where it was reasonable for the complainant to believe that he was in a position to carry out the threat and intended to do so, or there was a real possibility that he would carry out the threat.
3.Due to the combination of matters referred to in the preceding paragraphs, the Magistrate erred in finding that there was no case to answer.
4.The matter be remitted for a further hearing before a different magistrate.

Criminal Law Consolidation Act 1935 (SA) ss 20, 20AA, 20AC, 270A; Magistrates Court Act 1991 (SA) s 42, referred to.
Edwards v Police (1998) 71 SASR 493; MacPherson v Beath (1975) 12 SASR 174; Police v Harrison [2017] SASC 18, applied.
Nasr v Police [2017] SASC 138; Parish v Police [2018] SASC 18; Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1; The Queen v Bilick and Starke (1984) 36 SASR 321, discussed.
Fox v Percy (2003) 214 CLR 118, considered.

POLICE v CARUSO
[2021] SASC 58

Magistrates Appeal: Criminal

PARKER J: This is an appeal by the police against a finding made by a Magistrate that there was no case to answer.
Background
The respondent was charged with assaulting a prescribed emergency worker contrary to s 20AA(3) of the Criminal Law Consolidation Act 1935 (SA) in relation to events alleged to have occurred on 29 August 2020 in a cell in…

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 Caruso

Details

AGLC: Police v Caruso [2021] SASC 58
Case: [2021] SASC 58
Decision Date: 21 May 2021

CaseChat Overview and Summary

In the case of Police v Caruso, the appellant challenged the decision of a magistrate who dismissed charges against the respondent for assault. The matter was heard in the Supreme Court of South Australia. The court was required to determine whether the magistrate had erred in finding that there was no case to answer. This required the court to examine whether the magistrate had overlooked or misconstrued evidence regarding the nature of the offence and whether the respondent could have been properly charged with an assault. The court held that the magistrate had misconstrued the relevant question to be asked regarding the nature of the offence. The magistrate had focused on whether the respondent could have caused his saliva to come into contact with the complainant, rather than considering whether the respondent had threatened such conduct. This misconstrual led to an incorrect conclusion that there was no case to answer. The court held that the magistrate erred in finding that there was no case to answer and that the matter should be remitted for a further hearing before a different magistrate. This decision highlights the importance of correctly interpreting the elements of an offence and ensuring that all relevant evidence is considered in determining whether a case should proceed to trial.

Orders

Orders of the court

Held, per Parker J, allowing the appeal:

1. The Magistrate erred in overlooking the evidence of the complainant that the respondent spat straight at her while looking at her.

2. The Magistrate erred in misconstruing the relevant question to be asked, that being, not whether the respondent’s saliva could have come into contact with the complainant, but whether he had threatened such conduct in circumstances where it was reasonable for the complainant to believe that he was in a position to carry out the threat and intended to do so, or there was a real possibility that he would carry out the threat.

3. Due to the combination of matters referred to in the preceding paragraphs, the Magistrate erred in finding that there was no case to answer.

4. The matter be remitted for a further hearing before a different magistrate.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Moreover, s 20AC required the Magistrate to consider whether it would have been open to a trial court to return an alternative verdict. The alternative verdict would be an attempt in accordance with s 270A of the CLCA to commit the offence under s 20AA(3). For these reasons, I do not accept the contention by the respondent that he should only have been charged with an attempted offence. Conclusion I uphold the appeal and direct that the matter be remitted for a further hearing before a different magistrate.

Ratio Decidendi

Legal Principle Established

The respondent submits that while there is no doubt that a threat amounts to an assault, a threat inherently relates to some future action. Leaving aside the evidence in this particular matter, the respondent submits that actually spitting at someone would more appropriately be characterised as an attempt to cause saliva to come in contact with the complainant, rather than a threat for the same to occur. Consideration As this is an appeal by way of rehearing in accordance with s 42 of the Magistrates Court Act 1991 (SA) this Court must “conduct a real and independent review of the evidence put before the magistrate and come to its own conclusions”.[2] However, in doing so the Court must make due allowance for the advantage held by the Magistrate in having heard and seen the evidence given at trial. This Court should not interfere with the findings of fact made by the Magistrate unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony” or they are “glaringly improbably” or “contrary to compelling inferences”.[3][2] Parish v Police [2018] SASC 18 at [8] (Lovell J).[3] Fox v Percy (2003) 214 CLR 118 at [29] (Gleeson CJ, Gummow and Kirby JJ); Parish v Police [2018] SASC 18 at [8] (Lovell J). It is also important to recognise that the Magistrate decided this matter on the basis that the respondent had no case to answer. This was not a case where a finding that the respondent was not guilty was made after a trial. In Questions of Law Reserved on Acquittal (No 2 of 1993) King CJ summarised the principles to be applied when considering a no case to answer submission as follows:[4]If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.[4] (1993) 61 SASR 1 at 5. Thus, the test to be applied by the Magistrate was whether there was evidence with respect to every element of the offence charged with, which, if it was to be accepted by the trier of fact, could prove that element of the offence beyond reasonable doubt.[5] [5] The Queen v Bilick and Starke (1984) 36 SASR 321 at 337 (King CJ). In essence, ground 1 of the notice of appeal explains and particularises the contention in ground 3 that the Magistrate erred in finding that there was no case to answer. For this reason, I will consider ground 1 concurrently with ground 3.