Police v Fry - [2020] SASC 227

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v FRY
[2020] SASC 227
Judgment of The Honourable Justice Bampton
27 November 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - MISCELLANEOUS MATTERS - ALIBI
Appeal against the ruling of a Magistrate permanently staying the criminal proceedings against the respondent – where respondent charged with committing the offences of being unlawfully on premises and damaging property at Collinswood alleged to have occurred at about 9.25 am on 24 May 2019 – where respondent provided the appellant with an affidavit of an alibi witness which placed the respondent at a Blakeview shop from between 9.15 am and 9.30 am to at least 10.56 am – where prosecutor telephoned alibi witness (“the telephone call”) and deposed to the matters discussed in the telephone call in an affidavit – where Magistrate made a finding of fact that, as a result of the telephone call, the alibi witness had chosen not to be a witness at the trial – where there was no evidence upon which the finding could be made.
HELD: Appeal allowed – the Magistrate’s ruling was based on a finding of fact without supporting evidence – there was no assessment of what the Court could do in the conduct of the trial to relieve against the asserted unfair consequences of the telephone call – order of the Magistrate staying the proceedings set aside and order made that the matter proceed to trial before a different Magistrate.
Summary Offences Act 1953 (SA) s 17; Criminal Law Consolidation Act 1935 (SA) s 85; Magistrates Court Rules 1992 (SA) r 26, referred to.
Jago v District Court of New South Wales & Ors (1989) 168 CLR 23; R v H, GJ [2014] SASCFC 34, applied.
Browne v Dunn (1893) 6 R 67, discussed.

POLICE v FRY
[2020] SASC 227
Magistrates Appeal: Criminal

BAMPTON J: On 24 May 2019 at 10.56 am, Ronald Fry bought a red carnival bowl from Hazel’s Gifts and Collectables (“Hazel’s”) at Blakeview. The precision of the timing associated with the purchase will soon be evident.
On 20 June 2019, Mr Fry was charged with committing the offences of being unlawfully on premises[1] and damaging property[2] at Collinswood on 24 May 2019 (“the offending”).
[1] Contrary to s 17 of the Summary Offences Act 1953 (SA).
[2] Contrary to s 85(2) of the Criminal Law Consolidation Act 1935 (SA).
On 28 April 2020, a Magistrate ordered a permanent stay of the prosecution of the charges against Mr Fry. The appellant appeals that order.
Background
The appellant alleges that at about 9.25 am on 24 May 2019 the complainant householder was notified by his home security system that someone was at his front door. The appellant further alleges that Mr Fry was seen on…

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 Fry

Details

AGLC: Police v Fry [2020] SASC 227
Case: [2020] SASC 227
Decision Date: 27 November 2020

CaseChat Overview and Summary

The case of Police v Fry concerns an appeal against the ruling of a Magistrate who permanently stayed criminal proceedings against the respondent, Mr Fry, who was charged with being unlawfully on premises and damaging property. The appellant, representing the Police, appealed the decision to the Supreme Court of South Australia. The central issue before the court was whether the Magistrate's decision to permanently stay the proceedings was based on a finding of fact without supporting evidence and whether there was an appropriate assessment of measures that could be taken in the conduct of the trial to mitigate any unfair consequences of the telephone call made by the prosecutor to an alibi witness.

The court found that the Magistrate's ruling was flawed as it was based on a finding of fact that was not supported by evidence. Specifically, the Magistrate concluded that the alibi witness, Ms Ledo, had chosen not to be a witness at the trial due to a telephone call from the prosecutor, Mr Mileson. However, there was no evidence upon which the Magistrate could make this finding. The court further held that the Magistrate did not assess what the Court could do in the conduct of the trial to relieve against the asserted unfair consequences of the telephone call. The court emphasised that there was no evidence of an improper attempt to discourage Ms Ledo from coming to court or any attempt to persuade her to alter the matters she deposed to in her affidavit. Consequently, the order of the Magistrate staying the proceedings was set aside, and the matter was ordered to proceed to trial before a different Magistrate.

In conclusion, the Supreme Court allowed the appeal and ordered that the matter proceed to trial before a different Magistrate, emphasising that the Magistrate's decision was based on an unsupported finding of fact and lacked an appropriate assessment of measures that could be taken to mitigate any unfair consequences of the telephone call.

Orders

Orders of the court

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Background

Background to the litigation

On 28 April 2020, a Magistrate ordered a permanent stay of the prosecution of the charges against Mr Fry. The appellant appeals that order. Background The appellant alleges that at about 9.25 am on 24 May 2019 the complainant householder was notified by his home security system that someone was at his front door. The appellant further alleges that Mr Fry was seen on closed circuit television (“CCTV”) to enter the complainant householder’s property where he damaged a screen door. The appellant intended to lead at trial:·the CCTV footage from which the offender’s face can be seen and from which it intended to ask the Court to decide for itself whether the offender was Mr Fry;·evidence that the footage showed the offender wore a blue checked shirt, blue tracksuit pants with white stripes, and white shoes, and that those items were found at Mr Fry’s home; and·that a shoe print found at the crime scene had a high probability of matching a shoe found at Mr Fry’s home.The alibi notice On 16 October 2019, in compliance with r 26.03 of the Magistrates Court Rules 1992 (SA), Mr Fry’s solicitor sent an email to the appellant disclosing the affidavit of Jemma Ledo affirmed 11 October 2019. Rule 26.03 provides:Prior to a matter being set down for hearing the defence must give notice to the prosecution if evidence of alibi may be called. The notice must give details of the proposed evidence including the name and address of the witnesses. Ms Ledo deposed in her affidavit that she is employed at Hazel’s and, as at the date of her affidavit, had been employed in her role for just over one year. Ms Ledo stated that she understood that Mr Fry had been a customer of Hazel’s for approximately five years and that she does not know him other than as a Hazel’s customer. Ms Ledo deposed that on 24 May 2019 she worked at Hazel’s from 9.00 am to 5.00 pm and that Mr Fry is “always at the store early, sometimes before [9.00 am] waiting for it to open”. She also deposed that Mr Fry spends a significant amount of time at the store looking at items and that he always talked at length with her. Ms Ledo’s affidavit concludes as follows:9.I recall that on Friday, 24 May 2019 [Mr Fry] was not at Hazel’s early like he usually is. He did not arrive until 9:15-9:30am.10.By reference to a receipt I can say that on 24 May 2019, [Mr Fry] purchased a red glass bowl. I recall discussing the purchase of the bowl with him because I had never seen a bowl like the one he purchased. It was a red carnival bowl. I recall, in particular, that I was chatting his ear off. Now shown to me and marked JL1 Is a copy of the receipt.11.The receipt from 24 May 2019 shows that the red bowl was purchased at 11:56am. However, on 25 May 2019, [Mr Fry] attended Hazel’s and asked me to check whether the time on the receipts was correct. I made a test receipt and realised that the time was out by 1 hour due to day light saving. Therefore, the actual time of the receipt should be 10:56am.Ms Ledo’s affidavit therefore, places Mr Fry at Hazel’s on 24 May 2019 from 9.15–9.30 am to at least 10.56 am.The telephone call and the application for the stay

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Significantly, Ms Shaw’s affidavit does not state that Mr Fry’s solicitors had spoken with Ms Ledo following her conversation with Mr Mileson, does not assert that Ms Ledo had refused to come to court, nor that Ms Ledo was “frightened off” by Mr Mileson. Further, there was no submission made to the Magistrate that anyone spoke to Ms Ledo after her conversation with Mr Mileson, or that she had chosen not to be a witness at the trial.Conclusion The ruling was based on a finding of fact without supporting evidence. In the absence of any evidence to justify the conclusion that after speaking with Mr Mileson Ms Ledo chose not to be a witness at trial, the decision to stay the proceedings is flawed. The reversal of the onus on the application leading to the conclusion that there was nothing to prevent the Court from finding Ms Ledo was frightened off by Mr Mileson and the unfounded assumption that Mr Mileson’s discussion with Ms Ledo was unfair or improper compounded that error of fact. The ruling is affected by error and cannot stand. The exercise of the discretion to stay the proceedings was further flawed as there was no assessment of what the Court could do in the conduct of the trial to relieve against the asserted unfair consequences of the conversation between Mr Mileson and Ms Ledo. There is no evidence of an improper attempt to discourage Ms Ledo from coming to court nor any attempt to persuade Ms Ledo to alter the matters she deposed to in her affidavit. Mr Mileson said he wanted Ms Ledo to tell the truth as she remembered it. I agree that the reference to the prosecution evidence or the CCTV by Mr Mileson in his discussion with Ms Ledo was appropriate and consistent with the matters that would have been put to Ms Ledo at trial and consistent with the prosecution’s duty to comply with Browne v Dunn.[9] Mr Mileson would have been entitled to show the footage to Ms Ledo and ask her whether she recognised the person captured on the footage. Mr Mileson’s comment to Ms Ledo to the effect that if she gave evidence in court that she knew not to be true, she could potentially be subject to criminal proceedings would have been better not said. However, it does not, in the circumstances of this matter, result in an unfairness, particularly when there is no evidence of Ms Ledo’s response to the comment.[9] Browne v Dunn (1893) 6 R 67. As contended by the appellant, Mr Mileson’s actions did not deprive Mr Fry of an alibi, and at most they may have reduced the weight of Ms Ledo’s evidence. There is no evidence before the Court that allows for findings to be made about Ms Ledo’s response to the impugned conversation without hearing her evidence. All the Court has is the affidavit of Ms Ledo deposing to matters relevant to Mr Fry’s alibi and Mr Mileson’s affidavit deposing to his interpretation of his conversation with her. If during the discussion, Ms Ledo expressed doubt about matters she deposed to in her affidavit – a matter yet to be determined – that is not an unfairness warranting a stay of the proceedings.

Ratio Decidendi

Legal Principle Established

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