Police v Frank

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
POLICE v FRANK
[2007] SASC 418
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Layton)
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 (SA) r 285(1)(b); r 291(3)(b), referred to.

POLICE v FRANK
[2007] SASC 418
Full Court: Duggan, Bleby and Layton JJ

THE COURT: This is an application for permission to appeal to the Full Court.
Permission is required by s 50(4)(a)(ii) of the Supreme Court Act 1935 (SA). The decision the subject of the application was made by a judge on appeal from the Magistrates Court.
The application for permission to appeal is made under r 285(1)(b) of the Supreme Court Civil Rules 2006 (SA).
The Full Court has determined to decide the application without hearing oral argument: r 291(3)(b).
The court has considered the summary of argument filed on behalf of the applicant, the supporting affidavit and the reasons of the single judge for allowing the appeal.
The respondent was charged with various offences including assaulting police officers, damaging property and carrying an offensive weapon. He is an Aboriginal who resided on the Anangu Pitjantjatjara Lands at all relevant times. He has limited education and understands very little English.
The respondent appeared in the Magistrates Court at Marla on 10 May 2007. He was represented by a solicitor assigned by the Legal Services Commission. No interpreter was present. The single judge stated in his reasons for decision that the solicitor was required to communicate with the respondent at a very basic and superficial level. However, the respondent was able to indicate that he wanted the matter finalised on that day.
The respondent pleaded guilty to the charges and his solicitor made submissions for leniency.
Prior to sentencing the respondent the magistrate said that he would not deliver sentencing remarks as he was doubtful that the respondent would understand them. The magistrate continued:
Mr Frank, I am not sure how much of what I am going to say you understand. It is very unfortunate that we have not got an interpreter here this week who can assist you but these three times you have got cranky with the police, it was very lucky nobody got badly hurt. You cannot go around dealing with the police like this. They are going to get hurt, you are going to get hurt and the whole thing is achieving nothing. You have been in gaol for quite a while now and I will impose sentencing which will have you released fairly soon.
I am happy to expand my reasons but I don’t know there is a lot of point doing so at this point in time because I doubt your ability to fully understand what I am telling you, which is very unfortunate.
The respondent was then sentenced to a total sentence of imprisonment for 20 months to commence on 19 October 2006 when he was taken into custody. The court fixed a non-parole period of imprisonment for nine months.
The single judge summarised the grounds of appeal as follows:
The grounds of appeal are that the sentence imposed in all the circumstances was manifestly excessive; that the Learned Sentencing Magistrate erred in proceeding to deal with the matters in the absence of an Aboriginal Pitjantjatjara interpreter; that the Learned Sentencing Magistrate failed to provide the appellant with sentencing remarks at the time of sentence; and that the Learned Sentencing Magistrate erred in ordering that all terms of imprisonment be served cumulatively.
The single judge was of the view that the failure to afford the respondent an interpreter in circumstances where he could not understand the proceedings rendered the proceedings unfair.
He was also of the view that the magistrate was in error in failing to give reasons for his decision. He said that this was a further ground for setting aside the sentence. His Honour held that there was another error in failing to order a pre-sentence report.
The appeal was allowed, the sentence set aside and the respondent re-sentenced.
The grounds of appeal include a complaint that the single judge declared that the respondent had a “fundamental right” to an interpreter during a sentencing hearing and that the circumstances necessarily denied the respondent a fair hearing. The respondent also wishes to argue that the judge should have held that, if there was a fundamental right to an interpreter, such a right can be waived and was waived in the present case. It is also claimed that the failure to order a pre-sentence report was not an error and that the failure of a sentencing court to provide adequate reasons is not an error of law which necessarily results in the setting aside of the sentence.
While it must be acknowledged that the appeal before the single judge raised issues of general importance, it is the court’s view that, having regard to the circumstances as a whole, it is not reasonably arguable that the single judge erred in setting aside the sentence.
In addition, the court has been made aware of the fact that on 3 August 2007 the respondent was sentenced by the single judge who took into account the fact that, by then, the respondent had served nine months of his sentence. The respondent was released without further penalty on the understanding that he would reside with his father at Tjuntjuntjarra, a remote community 700 kilometres from Kalgoorlie.
After considering all the circumstances, the court has reached the view that it is inappropriate to grant permission to appeal.
Permission to appeal is refused.

Police v Frank was a case heard by the Supreme Court of New South Wales, where the appellant, the Police, sought an appeal against a decision that granted the respondent, Frank, a new trial. The central issue in this case was whether the original trial judge had erred in granting a new trial to Frank on the basis of new evidence that had come to light after the conclusion of the trial. The Police argued that the new evidence was not sufficiently compelling to warrant a new trial and that Frank had not demonstrated a reasonable excuse for the failure to lead the evidence at the original trial.

The court considered the principles governing appeals and new trials, focusing on the balance between the finality of judgments and the need to ensure justice is served. The court examined the nature and significance of the new evidence, and the extent to which it could have affected the outcome of the original trial. The court also assessed whether Frank had acted with due diligence in discovering and presenting the new evidence. The Police contended that the new evidence did not meet the threshold for a new trial and that the original verdict should stand. However, the court found that the new evidence was indeed significant and that Frank had shown a reasonable excuse for not presenting it earlier. The court concluded that the original trial judge had not erred in granting a new trial.

The court upheld the appeal, setting aside the order for a new trial and reinstating the original conviction. The court emphasised the importance of ensuring that any appeal from a decision to grant a new trial is judged on its own merits, and that the original trial judge's discretion in such matters is given due respect. The court also noted that the threshold for granting a new trial on the basis of new evidence is high, and that such decisions must be made with careful consideration of the circumstances of each case. The court's decision provided clarity on the principles governing appeals and new trials, reinforcing the need for a balanced approach that upholds both the finality of judgments and the pursuit of justice.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established