Police v Scheving

The appeal concerned a decision of a single Judge of the Supreme Court of South Australia, who had allowed an appeal against conviction by the respondent, Mr Scheving, and substituted a verdict of not guilty for an indecent assault conviction. The Informant, the Police, sought permission to appeal this decision to the Full Court. The original conviction had been made by a Magistrate.

The Full Court was required to determine whether the single Judge had erred in law by interfering with the Magistrate's findings of fact, particularly those based on the credibility of the victim. The central issue was whether the single Judge had correctly applied the principles governing appellate review of findings of fact, especially when those findings were based on the assessment of a witness's demeanour and reliability.

The Full Court allowed the appeal, setting aside the single Judge's orders and reinstating the Magistrate's decision. The Court reasoned that the single Judge had impermissibly re-evaluated the evidence and substituted his own view for that of the Magistrate, who had the advantage of observing the victim's testimony directly. The Full Court emphasised that an appellate court should only interfere with a judge's findings of fact, particularly those concerning credibility, if those findings are demonstrably wrong. In this instance, the single Judge had failed to demonstrate that the Magistrate's findings were clearly wrong, and had instead engaged in a fresh assessment of the evidence.

The Full Court ordered that the appeal against conviction be dismissed, meaning the original conviction by the Magistrate stood. The appeal against sentence, which had been outstanding, was remitted to a single Judge for determination.