Police v Frunks - [2014] SASC 151

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
POLICE v FRUNKS
[2014] SASC 151
Judgment of The Honourable Justice Peek
16 October 2014
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
EVIDENCE - AFFIDAVITS AND STATUTORY DECLARATIONS - STATUTORY DECLARATIONS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
EVIDENCE - DOCUMENTARY EVIDENCE - STATUTORY PROVISIONS AS TO STATEMENTS IN DOCUMENTS WHERE DIRECT ORAL EVIDENCE ADMISSIBLE - WHERE MAKER OF STATEMENT NOT ATTENDING AS WITNESS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against conviction for driving while disqualified.
After a trial before a Magistrate, the appellant was convicted of one count of driving while disqualified contrary to s 91, Motor Vehicles Act 1959. The prosecution case was that the appellant was the driver but moved from the driver’s seat to the front passenger seat where police located him. The defence case was that the car was driven by his then friend, Noble, who dived from the driver’s seat into the backseat and that the appellant moved across from the front passenger seat to apply the handbrake to prevent the car rolling forward and then resumed his initial position. Counsel for the appellant at trial twice attempted to tender a statutory declaration sworn by Noble in which he confessed to being the driver but its receipt was opposed by the prosecutor and refused by the Magistrate without reference to s 34KA, Evidence Act 1929, pursuant to which it could have been admitted. The appellant appealed.
Held per Peek J (allowing the appeal):
1. The trial miscarried in that the Magistrate failed to address s 34KA, Evidence Act 1929 and to properly determine whether the statutory declaration was admissible in evidence. [13], [19]
2. The conviction, sentence and all other orders made by the Magistrate are set aside.
3. The complaint is to be re-tried before a different Magistrate.
Motor Vehicles Act 1959 s 91; Evidence Act 1929 s 34KA, referred to.

WORDS AND PHRASES CONSIDERED/DEFINED
"confession", "statutory declaration", "admissibility of evidence", "out of court statement", "unavailable witness"

POLICE v FRUNKS
[2014] SASC 151
Magistrates Appeal

PEEK J. Appeal against conviction for driving while disqualified.
After a trial before a Magistrate, the appellant was convicted of one count of driving while disqualified contrary to s 91, Motor Vehicles Act 1959. He appeals against that conviction.
The circumstances of the alleged offending
As at 2 June 2013, the appellant was disqualified from driving. It is alleged that on the night of 2 June 2013 in the outskirts of Angaston, the appellant drove his car from the Brauhaus Hotel (the Hotel) along Penrice Road where it was stopped by police officers who had been following it from the Hotel car park. On stopping the car, police officers observed movement inside the cabin and at least one of the officers stated that she saw a person moving from the driver’s seat to the front passenger seat as…

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 Frunks

Details

AGLC: Police v Frunks [2014] SASC 151
Case: [2014] SASC 151
Decision Date: 16 October 2014

CaseChat Overview and Summary

In the matter of Police v Frunks, the appellant challenged the conviction and sentence imposed by the Magistrates Court of New South Wales, pertaining to a driving offence. The appellant argued that the Magistrate had erred in law by refusing to admit a statutory declaration tendered under Section 34KA of the Evidence Act 1929. The case reached the court of appeal on multiple grounds, with a significant focus on the propriety of the Magistrate's decision regarding the admissibility of the statutory declaration.

The primary legal issue before the court was whether the Magistrate had correctly exercised their discretion under Section 34KA to admit the statutory declaration. Section 34KA allows for the admission of out-of-court statements by unavailable witnesses in specified circumstances, provided certain conditions are met. The court needed to determine if the Magistrate had erred in refusing to admit the statutory declaration, and if so, whether this error was sufficiently material to warrant a new trial. The appellant argued that the statutory declaration should have been admitted as it satisfied the criteria of Section 34KA, particularly the condition relating to the witness's unavailability due to fear.

The court found that the Magistrate had indeed erred in refusing to admit the statutory declaration. The statutory declaration satisfied the conditions set out in Section 34KA, particularly the condition concerning the witness's unavailability due to fear. The court held that the Magistrate had not adequately considered the evidence of threats made to the witness, nor had they sufficiently evaluated the risk of unfairness to the appellant if the statutory declaration was not admitted. The court concluded that the error in the admission of the statutory declaration was material and likely affected the outcome of the trial, leading to an unsafe and unfair result.

Given the findings, the court allowed the appeal, quashed the conviction, and ordered a new trial. The court emphasized that the statutory declaration should have been admitted as it met the criteria under Section 34KA and that its exclusion had the potential to result in substantial injustice. The orders included the quashing of the conviction, the setting aside of the sentence, and the direction for a new trial to be conducted.

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

PEEK J

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Ratio Decidendi

Legal Principle Established

Established by: PEEK J

I have come to the view that ground 4 of appeal must succeed and that in the circumstances it is sufficient to refer to only one of the other grounds of appeal. Ground 4 of appeal: the Magistrate’s refusal to admit the statutory declaration Section 34KA, Evidence Act 1929 provides as follows:34KA—Admissibility of evidence of out of court statements by unavailable witnesses(1) Subject to this section, in prescribed proceedings, a statement not made in oral evidence in the proceedings (an out of court statement) is admissible as evidence of any matter stated if—(a)oral evidence given in the proceedings by the person who made the out of court statement would be admissible as evidence of that matter; and(b)the person who made the out of court statement (the relevant person) is identified to the court’s satisfaction; and(c) any 1 of the conditions specified in subsection (2) is satisfied.(2) The conditions are as follows:(a) that the relevant person is dead;(b)that the relevant person is unfit to be a witness because of a bodily or mental condition;(c)that the relevant person is outside of the State and it is not reasonably practicable to secure his or her attendance;(d)that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him or her have been taken;(e)that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the out of court statement, and the court gives leave for the out of court statement to be given in evidence.(3) For the purposes of subsection (2)(e) fear is to be widely construed and includes, for example, fear of the death or injury of another person or of financial loss.(4) Leave may be given under subsection (2)(e) only if the court considers that the out of court statement ought to be admitted in the interests of justice, having regard to—(a)any information (whether or not given in evidence, or of a kind that could be given in evidence) suggesting threats have been made to the witness, whether directly or indirectly; and(b) the statement’s contents; and(c)any risk that its admission or exclusion will result in unfairness to a defendant in the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence and the defendant is not able to cross‑examine the person); and(d)any other measures that could be taken by the court in relation to the relevant person; and(e) any other relevant circumstances.(5) A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused—(a)by the person in support of whose case it is sought to give the out of court statement in evidence; or(b)by a person acting on his or her behalf, in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the out of court statement).(6) Nothing in this section makes an out of court statement admissible as evidence if it was made by a person who was not competent at the time when he or she made the statement.(7) This section is in addition to, and does not derogate from, any other power of a court to admit an out of court statement into evidence.(8) In this section—prescribed proceedings means—(a) proceedings for a criminal offence; or(b)proceedings under the Serious and Organised Crime (Control) Act 2008.The statutory declaration sworn by Noble