Police v Ludwig - [2015] SASC 183

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v LUDWIG
[2015] SASC 183
Judgment of The Honourable Justice Peek
12 November 2015
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - EVIDENCE - BURDEN AND STANDARD OF PROOF
Appeal against sentence. The appellant was charged with driving in a manner dangerous to the public (Count 1) and a number of other offences. The appellant originally relied on a defence of necessity on the basis that he was fleeing from an attacker. However, during negotiations with the police prosecutor, the appellant’s solicitor indicated the appellant would plead guilty on the factual basis that although he could not establish a defence of necessity, he perceived that he was being chased.
On 12 June 2015 the police prosecutor made submissions on sentencing to the Magistrate based on the police apprehension report. She alleged that the appellant appeared to be racing another vehicle; both vehicles were side-swiping each other; after a collision, the appellant sped off while police were approaching the other driver; but that he eventually stopped at the police station. The solicitor made submissions that the appellant was not engaging in thrill-seeking behaviour but was attempting to escape from what he thought was an attacker. Unfortunately, he failed to inform the Magistrate that he understood that the prosecution accepted that position. The police prosecutor made no submissions with respect to the appellant’s motivation. The Magistrate said he would read the apprehension reports and consider the submissions. On 19 June 2015, the Magistrate sentenced the appellant to 8 months imprisonment for Count 1 with other cumulative sentences for other unrelated offending.
The appellant appealed only against the sentence imposed in respect of Count 1. It was contended that the appellant’s solicitor had misunderstood the prosecution position and had thought that the prosecution had agreed to accept the appellant’s version of events. The appellant’s counsel accepted that the solicitor should have informed the Magistrate that such an agreement existed, but urged that detrimental consequences should not be visited upon the appellant himself for that failure. A transcript of the appellant’s record of interview, which was not available at the time of sentencing, was admitted on the appeal.
Held (allowing the appeal):
1. The onus was on the appellant to prove a mitigating factor such as a fear of being attacked. That onus can be discharged by the prosecution and the Magistrate both accepting the appellant’s assertion, or by the appellant giving evidence in an attempt to prove the assertion on the balance of probabilities. In general, a lawyer appearing for a defendant cannot assume that the defendant will be sentenced on the basis of the defence submissions; the lawyer has the primary responsibility to inform the defendant that judicial officers are not under a general obligation to indicate during sentencing submissions whether a submission is accepted.
2. Although the solicitor failed to ensure that the Magistrate was aware of the agreement he believed to exist between the prosecution and…

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 Ludwig

Details

AGLC: Police v Ludwig [2015] SASC 183
Case: [2015] SASC 183
Decision Date: 12 November 2015

CaseChat Overview and Summary

The appeal, heard in the South Australian Court of Appeal, involved a dispute between the respondent and the appellant, Mr Ludwig, regarding the sentencing process and the accuracy of the evidence presented. The appeal centred on whether the appellant was properly informed about the submissions made by the prosecution that could contradict his assertions during the sentencing hearing. The appellant argued that the police summary of his statements was inaccurate and that he was not adequately notified that his claims of fear might not be accepted by the Magistrate.

The legal issues before the court were whether the appellant was given proper notice that the prosecution contested his version of events and whether the Magistrate should have conducted a disputed facts hearing. The court had to determine if the appellant was placed at an unfair disadvantage due to the lack of clarity in the submissions made by the defence counsel and the absence of a response from the prosecution.

The court found that there was no explicit agreement between the parties about the appellant's beliefs at the relevant times, and the defence counsel did not ensure the Magistrate was aware of this. The court also noted that the content of the appellant's interview was misrepresented in the apprehension report. Given these factors, the court concluded that there was an unacceptable risk that the appellant was not on notice that his submission about his fear might not be accepted by the sentencing Magistrate. The court relied on the principle that if an offender is not aware that a submission advanced in mitigation might not be accepted, it could lead to an unfair sentencing process.

The court allowed the appeal and set aside the sentence of eight months imprisonment, remitting count 1 of the complaint to the Magistrates Court for re-sentencing. The court emphasised that the re-sentencing would be based on the facts found, without being constrained by the previous sentence. The court also clarified that the prosecution could take an appropriate attitude towards the appellant's assertions in mitigation and would have the right to cross-examine him if he chose to give evidence.

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

It is of high importance that police summaries of conversations in documents such as statements concerning identification procedures or apprehension reports are accurate and truthful. Serious miscarriages of justice may otherwise result.Conclusion In this case, the Magistrate was unaware of any agreement between the parties as to Mr Ludwig’s beliefs at the relevant times. However, during the interchange about the relevance of the appellant’s driving history, Mr O’Connor stressed his submissions about Mr Ludwig’s fear. This was not responded to by any prosecution submission alerting Mr O’Connor to a joinder of issue by the prosecutor on this important point. Although Mr O’Connor failed to ensure that the Magistrate was aware of the agreement he believed to exist between the prosecution and himself, I think it is just open to find that there was here an unacceptable danger that the appellant was not on notice that the basic submission being advanced of fear held by the appellant might not be accepted by the sentencing Magistrate: Kourakis CJ’s remarks in MJDH[26] have particular importance here. [26] (2013) 116 SASR 180, 185 [17]-[18]. Having regard to the cumulative force of this matter, taken together with the important matter of the content of the appellant’s interview being misrepresented in the apprehension report, I am persuaded that the sentence for the subject offence should be set aside. I should make the following matters plain. At a re-hearing of this matter, the prosecution may take what attitude they consider appropriate to assertions in mitigation made by the appellant; the authorities referred to above will govern the question of onus of proof as to aggravating and mitigating factors. If the appellant opts to give evidence, the prosecution will have the right to cross-examine him fully. Further, this is not a case in which it should be assumed that the original penalty imposed for the subject offence by the Magistrate, should act as some form of prima facie ceiling for the re-sentencing. Indeed, while I have found the process to be flawed as stated above, it is also not particularly clear on what basis of facts the Magistrate did eventually sentence. Suffice it to say that the Magistrate re-sentencing the appellant will have the right to impose a sentence appropriate to the facts found unfettered by what has passed before. Disposition of the appeal I allow the appeal and set aside the sentence of eight months imprisonment. I remit count 1 of the complaint to the Magistrates Court for re-sentencing. I will hear the parties as to the precise orders to be made.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

Mr English would have been on firmer ground if he had cited either R v Lobban[18] or MJDH v Director of Public Prosecutions.[19] In R v Lobban, Martin J (Mullighan and Bleby JJ agreeing) said:[20] [17] In R v Perre (1986) 41 SASR 105, King CJ pointed out that on a plea of guilty a sentencing judge is required ordinarily to determine the facts of the offending upon the basis of the sworn statements tendered by the prosecution. The statements now tendered by the prosecution are “verified” but not sworn. If an issue arises as to the primary facts disclosed by or to be inferred from those statements, and if resolution of the dispute is required for sentencing purposes, it may be necessary for a sentencing judge to undertake a disputed facts hearing. An issue having been joined, it is a matter for an offender whether or not to call evidence. A sentencing judge is not required to indicate any view of the facts. The offender is on notice that a view contrary to the offender’s position is being urged upon the judge. No unfairness can arise because the judge does not indicate a view during the disputed facts hearing or submissions.[18] Different considerations may apply if specific issue has not been joined between the prosecution and an offender. As the majority of the High Court pointed out in a joint judgment in R v Olbrich (1999) 199 CLR 270, there is no general issue joined between the prosecution and an offender in sentencing proceedings (at 281). In my view, in the absence of specific joinder, the potential for unfairness exists.(Emphasis added)[18] (2001) 80 SASR 550.[19] (2013) 116 SASR 180 (“MJDH”).[20] (2001) 80 SASR 550, 554. Here Martin J set out the first paragraph of the passage of King CJ reproduced above, and continued:[21][20] If a version of the criminal conduct put forward in submissions by an offender is inherently implausible or obviously contradicted by inferences plainly arising from the sworn statements, the remarks of King CJ in Perre are readily applicable. However, in other less obvious circumstances, in the absence of the prosecution taking issue with a version put forward in mitigation, an offender may be placed at an unfair disadvantage. Short of asking the judge whether the version put forward in submissions is accepted by the judge, an offender may not be in a position to decide whether it is necessary to call evidence. It is also appropriate to bear in mind that the Crown now takes a far more active role in sentencing proceedings than was the practice in 1986 when Perre was decided. In addition, in the following passage in Olbrich the High Court contemplated that it may be necessary to put an offender on notice of the need to call evidence (at 281):Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say ‘if necessary’ because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)[21] There can be no inflexible rule. Each case must be determined according to its particular circumstances. The critical question is whether an offender, by some means, is on notice that a submission advanced in mitigation might not be accepted by the sentencing judge. (Emphasis added)[21] (2001) 80 SASR 550, 555.