Police v Frank

[2007] SASC 418

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

1. THE COURT:      This is an application for permission to appeal to the Full Court.

2. 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.

3. The application for permission to appeal is made under r 285(1)(b) of the Supreme Court Civil Rules 2006 (SA). 

4. The Full Court has determined to decide the application without hearing oral argument: r 291(3)(b).

5. 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.

6. 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.

7. 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.

8. The respondent pleaded guilty to the charges and his solicitor made submissions for leniency.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. The appeal was allowed, the sentence set aside and the respondent re-sentenced.

15. 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.

16. 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.

17. 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.

18. After considering all the circumstances, the court has reached the view that it is inappropriate to grant permission to appeal.

19. Permission to appeal is refused.