Police v TCB - [2004] SASC 306

SUPREME COURT OF SOUTH AUSTRALIA
(Youth Court Appeal: Criminal)
POLICE v TCB
Judgment of The Honourable Justice White
29 September 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - ASSAULT OCCASIONING ACTUAL BODILY HARM
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - EVIDENCE AND COURSE OF TRIAL - GENERAL PRINCIPLES - NO CASE TO ANSWER
Police appeal from decision of Magistrate in the Youth Court - Respondent was charged with common assault, assault occasioning actual bodily harm and breach of a bond - Police alleged assault occasioning harm by hitting with bar - Uncertain whether victim's injury was caused by being hit with the bar, or by head hitting the ground during struggle - Magistrate upheld submission of "no case to answer" - Magistrate erred in finding no case to answer - Trial continued for common assault with bar - Respondent acquitted - Error in "no case to answer"ruling therefore of no effect - Impermissible for prosecution to rely on separate assault to which respondent admitted during trial - Verdict not unsafe - Disagreement between police and respondent as to whether a plea was taken to Count 1 - Issue resolved in favour of respondent - Both police and respondent agreed that no plea had been taken to Count 3 (breach of bond) - Magistrate erred in dismissing Count 3 before taking plea - Appeal allowed.
Youth Court Act 1993, s 22; Criminal Law Consolidation Act 1935, s 39, s 40; Young Offenders Act 1993, s 17, s 18, s 26; Summary Procedure Act 1921, s 27C, s 67, s 68, referred to.
Police v Slater (2003) 86 SASR 19; Police v Childs (2000) 76 SASR 425; R v Percali (1986) 42 SASR 46; Coulter v The Queen (1988) 164 CLR 350; Royall v The Queen (1990) 172 CLR 378; S v The Queen (1989) 168 CLR 266; Johnson v Miller (1937) 59 CLR 467, applied.
R v McLaren (1996) 189 LSJS 466; R v Perdikoyanis (2003) 86 SASR 262; Overall v The Queen (1993) 71 A Crim R 170; R v Bloomfield (1998) 44 NSWLR 734, considered.

POLICE v TCB
[2004] SASC 306
Appeal from the Youth Court
WHITE J
Introduction

This is an appeal pursuant to s 22 of the Youth Court Act 1993 from a decision of a Magistrate in the Youth Court, dismissing two counts of assault and one count of failing to comply with a bond.
The respondent was initially charged on an Information alleging one count of assault occasioning actual bodily harm. Following a pre-trial conference before a Judge, the prosecution filed a fresh Information which alleged that the respondent (then aged 15 years) had, on 21 July 2002, at Toorak Gardens:
“1.assaulted…

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 TCB

Details

AGLC: Police v TCB [2004] SASC 306
Case: [2004] SASC 306
Decision Date: 29 September 2004

CaseChat Overview and Summary

In the case of Police v TCB, the respondent was charged with common assault, assault occasioning actual bodily harm, and breach of a bond. The case came before the court as an appeal by the police against the decision of a magistrate in the Youth Court, who acquitted the respondent of the charges. The police argued that the magistrate had erred in upholding a submission of "no case to answer" regarding the assault occasioning actual bodily harm. The uncertain circumstances of the injury to the victim, whether caused by a bar or by the victim's head hitting the ground during a struggle, was at the heart of the dispute.

The legal issues before the court included whether the magistrate had erred in finding no case to answer and whether the prosecution could rely on a separate assault to which the respondent admitted during the trial. The court found that the magistrate had indeed erred in finding no case to answer, as the uncertain circumstances of the injury did not necessarily preclude a case from being made out. However, the court also found that the error was of no effect, as the trial continued for the common assault with the bar, and the respondent was acquitted. The court further held that it was impermissible for the prosecution to rely on the separate assault to which the respondent admitted during the trial.

The appeal was allowed on the ground that the magistrate had erred in dismissing Count 3 (breach of bond) before taking a plea. The court found that there was no plea taken to Count 3, and therefore, the magistrate should not have dismissed it without a plea. The court noted that there appeared to be little point in remitting the matter to the Youth Court for a plea to be taken to Count 3, given the agreement of the parties that the fate of Count 3 depended upon the fate of Counts 1 and 2. The court would hear the parties as to the appropriate order for the disposition of the appeal.

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

Ground 3 is not made out.Conclusion This means that the appeal succeeds on one point only, namely, that the Magistrate erred in dismissing Count 3 without a plea having been taken. Ordinarily the appellant’s success on that point would require the order dismissing Count 3 to be quashed and the matter to be remitted to the Youth Court. However, there does not appear to be much point to such an order given the agreement of the parties that the fate of Count 3 depended upon the fate of Counts 1 and 2. Accordingly, I will hear the parties as to the appropriate order for the disposition of the appeal.

Ratio Decidendi

Legal Principle Established

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