Police v Munro - [2005] SASC 104

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v MUNRO
Judgment of The Honourable Justice Sulan
23 March 2005
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES
The respondent was charged with various summary offences - at trial the magistrate asked to be provided with a copy of a witness's sworn statement which had not previously been marked for identification or tendered - the magistrate asked the witness questions referring to material contained within the statement - the magistrate dismissed the charges - whether the magistrate erred by making findings based upon a document which had not properly been admitted into evidence - whether the magistrate erred by descending into the arena - whether the magistrate erred by not affording the prosecution its statutory right to address the court at the conclusion of the evidence - whether the magistrate failed to give adequate reasons - appeal allowed.
Criminal Law Consolidation Act 1935 (SA) s 85(3), s 288B; Evidence Act 1929 (SA) s 29; Summary Offences Act 1953 (SA) s 6(1), s 6(2), s 7(1)(a); Summary Procedures Act 1921 (SA) s 68(3), referred to.
Harwood v Police (1998) 71 SASR 300; Hrysikos v Mansfield (2002) 135 A Crim R 179; Kotz v Police (1999) 205 LSJS 176; Lawson v Lee (1978) 19 SASR 442; Newman v Byrne [1969] SASR 350; Papps v Police (2000) 77 SASR 210; Sun Alliance Insurance Ltd v Massoud [1989] VR 8; The Queen's Case (1820) 129 ER 976; Yuill v Yuill [1945] 1 All ER 183; R v Musolino (2003) 86 SASR 37; The Queen v Prasad (1979) 23 SASR 161, considered.

POLICE v MUNRO
[2005] SASC 104
Magistrates Appeal
SULAN J
Introduction

The respondent, Paul Robert Munro, who I shall refer to as the defendant, was charged with disorderly behaviour in a public place, contrary to s 7(1)(a) of the Summary Offences Act 1953 (SA) (“the Act”), resisting police, contrary to s 6(2) of the Act, damaging property, contrary to s 85(3) of the Criminal Law Consolidation Act 1935 (SA) and assaulting a police officer, contrary to s 6(1) of the Act. The respondent pleaded not guilty to all charges. The magistrate dismissed all charges. The Police appealed the decision.
This appeal raises the issue of the extent to which a magistrate should question witnesses, and the conduct of a magistrate when questioning a witness. It deals with the procedure by which out of court previous statements are put to a witness. The prosecutor’s statutory right of address, and the extent to which a magistrate is required to give reasons for a decision are discussed.
Facts
The charges arose out of an incident on 10 July 2003 at the Sturt River Caravan Park. The prosecution case was that Constables Woods and Holmes, received a call to attend the Sturt River caravan park about a mental health issue. When…

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 Munro

Details

AGLC: Police v Munro [2005] SASC 104
Case: [2005] SASC 104
Decision Date: 23 March 2005

CaseChat Overview and Summary

The case of Police v Munro concerns an appeal against the dismissal of summary charges against the respondent, Munro. The charges stemmed from an incident at the Sturt River Caravan Park, where Constables Woods and Holmes were involved in an altercation with Munro. The magistrate dismissed the charges after questioning the credibility of the prosecution's witnesses. The appeal focuses on the procedural aspects of the trial, including the magistrate's questioning of witnesses, the admission of a witness's sworn statement, the prosecution's right to address the court, and the adequacy of the reasons given for the dismissal of the charges.

The legal issues in this case revolve around the procedural errors alleged by the appellant, including whether the magistrate erred by making findings based on a document that had not been properly admitted into evidence, by questioning the witness on the contents of the statement, by not allowing the prosecution its statutory right to address the court, and by providing inadequate reasons for the dismissal of the charges. The central issue is whether these procedural errors resulted in a miscarriage of justice.

The court examined the procedure for questioning a witness about a previous statement, as outlined in Section 29 of the Evidence Act 1929 (SA). The court found that the magistrate's conduct in questioning the witness on the contents of the statement was irregular, as it deviated from the prescribed procedure. The court noted that while the magistrate had the authority to require the production of the writing for inspection, the manner in which the statement was put to the witness was flawed. The court also considered whether the magistrate's actions constituted a denial of natural justice and whether the reasons provided for the dismissal of the charges were adequate.

The appeal was allowed, and the findings were set aside. The court held that the magistrate's procedural errors, particularly in handling the witness statement and not affording the prosecution its statutory right to address the court, warranted setting aside the findings and remitting the matter to the Magistrates Court for a re-trial. This decision underscores the importance of adhering to procedural rules to ensure a fair trial and the proper administration of justice.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This appeal raises the issue of the extent to which a magistrate should question witnesses, and the conduct of a magistrate when questioning a witness. It deals with the procedure by which out of court previous statements are put to a witness. The prosecutor’s statutory right of address, and the extent to which a magistrate is required to give reasons for a decision are discussed.Facts The charges arose out of an incident on 10 July 2003 at the Sturt River Caravan Park. The prosecution case was that Constables Woods and Holmes, received a call to attend the Sturt River caravan park about a mental health issue. When they arrived they spoke to an ambulance officer regarding the mental health patient involved. At this time two or three men approached the constables. During the ensuing conversation one of the men became aggressive and asked the constables to leave the front of his house. This person was identified by Constable Woods as the defendant. He gave evidence that the defendant’s language was offensive, and that the defendant was acting in an agitated manner. The defendant asked the constables why they were parked outside the front of his house. The evidence of the police officers was that their car was not parked in front of the defendant’s property. Constable Woods warned the defendant on several occasions to leave the area as he was acting in a disorderly manner. The defendant responded with more abusive language and continued to ask why the constables were parked outside the front of his house. He demanded that they remove their vehicle. The defendant walked off and said words to the effect of “Fuck you”. Constable Woods grabbed the defendant by the arm and told him that he was under arrest. Constable Woods said that the defendant resisted arrest by forcibly trying to shake his arm free. He continued to use offensive language. Constable Holmes attempted to assist Constable Woods in placing the defendant into the police vehicle. The defendant attempted to break free. As he did so the side mirror of the vehicle broke off. Constables Woods and Holmes restrained the defendant by putting him face down on the bonnet of the car. As they did so he head butted the bonnet on several occasions and bit Constable Holmes whilst he was attempting to restrain him. The bite left teeth marks on Constable Holmes’ hand. The constables radioed communications and a cage vehicle attended the caravan park. Other police officers attended and conveyed the defendant to the Sturt Police Station, where he was charged. The prosecution called an ambulance officer, Simon Burke, to give evidence. During the cross-examination of Mr Burke, the magistrate asked to be provided with a copy of Mr Burke’s sworn statement. The statement had not previously been tendered or marked for identification. The police prosecutor handed the statement to the magistrate. She did not protest or make submissions about the course the magistrate had adopted. The magistrate then asked the witness questions referring to material contained in the statement. After the prosecution had closed its case, counsel for the defendant stated that the defendant would give evidence. The magistrate indicated that in respect of the charge of assaulting a police officer, the evidence of the prosecution witnesses was so unsatisfactory that, in accordance with the principle referred to in The Queen v Prasad[1], the charge should be dismissed. Counsel for the defendant then made a Prasad application. The magistrate ruled that the evidence was equivocal, bewildering and vague to the point that he had little faith in its accuracy or reliability. He applied Prasad and dismissed the charge of assaulting police.[1] (1979) 23 SASR 161

Evidence

Evidence Before The Court

The appellant complains that the magistrate erred in law in finding the respondent not guilty on all counts, and seeks orders that the findings be set aside and that the matter be remitted to the Magistrates Court for a re-trial. The appellant complains that the magistrate erred in law in the following respects:·by purporting to make findings based upon a document which had not properly been admitted into evidence;·by “descending into the arena”;·by not affording the prosecution its statutory right to address the Court at the conclusion of the evidence, thus also denying the parties natural justice; and·by providing inadequate reasons for the orders of acquittal.Reliance upon a document which had not properly been admitted into evidence The appellant submits that the magistrate erred by making factual findings based upon a statement which had not been admitted into evidence. The magistrate asked to be provided with a copy of Mr Burke’s sworn statement. The magistrate questioned Mr Burke on the contents of his statement. The appellant complains that through the use of this witness statement the magistrate descended into the arena. The first question to be addressed is whether the process pursuant to which the statement was put to the witness was flawed and, if so, was there a miscarriage of justice. The manner in which Mr Burke’s witness statement was put to him was irregular. Section 29 of the Evidence Act 1929 (SA) provides: A witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the subject matter of the cause, without the writing being shown to him; but if it is intended to contradict the witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always, that the judge, at any time during the trial, may require the production of the writing for his inspection; and may thereupon make such use of it, for the purposes of the trial, as he thinks fit. The purpose of the section is to allow a cross-examiner to avoid the consequences of the rule in The Queen's Case[2], in which the court ruled that if a cross-examiner wished to cross-examine a witness about a previous statement made in writing, the witness must be shown the document before any questions could be asked upon it. If the witness admitted making the statement the statement could be read as part of the cross-examiner's case. If the witness denied making the statement another witness could be called to prove it was the witness's statement and then read it as part of the cross-examiner's case.[3] [2] (1820) 129 ER 976[3] See Cross on Evidence, Seventh Australian Ed at 564 [17540-17545] adopted in R v Musolino (2003) 86 SASR 37 [105] The decision in The Queen’s Case has been criticised by a number of commentators, including Wigmore, who referred to it as unsound of principle and of practical inconvenience in trials.[4] One of the main criticisms centred around the requirement that the cross-examiner was required to tender the statement as part of his or her evidence. Prior to the change of procedures in South Australia, whereby counsel for an accused now addresses the Court after the prosecution address[5], the effect of the rule was that the party tendering the statement was required to address before his or her opponent. In criminal trials before juries, it was considered by some that the loss of the right to address the jury after the prosecution address disadvantaged the accused. A further disadvantage was the requirement to put the whole statement in evidence as part of the cross-examiner’s case. That may have resulted in previous consistent statements on other topics becoming part of the cross-examiner’s case. Not surprisingly, cross-examiners were often reluctant to put the complete statement into evidence. Section 29 was enacted to overcome what was considered to be a rule which created unfairness to the cross-examining parties. [4] Wigmore at [1259], see Cross on Evidence, Seventh Australian Ed at 564 [17540][5] Section 288B(2) Criminal Law Consolidation Act 1935 (SA)

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.