Police v Willing - [2005] SASC 294

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v WILLING
Judgment of The Honourable Justice Gray
9 August 2005
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
FAMILY LAW AND CHILD WELFARE - THE FAMILY LAW ACT 1975 (CTH) AND RELATED LEGISLATION - INJUNCTIONS - EX PARTE INJUNCTIONS
Crown appeal against dismissal of complaint by magistrate - alleged that respondent breached restraining order - respondent pleaded not guilty - proof of service document tendered by Crown during trial as part of exhibit P1 - respondent submitted to magistrate that proof of service document ought to be withdrawn from exhibit P1 - proof of service withdrawn - complaint dismissed on the basis that service of restraining order had not been proved - consideration of Domestic Violence Act 1994 section 9(2) - consideration of Magistrate Court Rules 1992 Rule 18A.05 - consideration of Evidence Act 1929 section 45C - consideration of Summary Procedure Act 1921 section 28 - discussion of acceptance of further evidence on appeal - respondent's request to withdraw the proof of service document misconceived - withdrawal of proof of service notice from exhibit constituted an irregularity in trial procedure and gave rise to unfairness to the Crown - held: appeal allowed - decision of magistrate dismissing complaint set aside - prosecution has established case to answer - matter remitted to magistrate for further hearing.
Domestic Violence Act 1994 (SA) s 9(2), s 15(1); Magistrates Court Rules 1992 (SA) r 18A.05; Evidence Act 1929 (SA) s 45C; Summary Procedure Act 1921 (SA) s 28(2), referred to.
R v Liristis [2004] NSWCCA 287; R v Patsalis & Spathis No 6 [1999] NSWCA 746; Holder v Lewis (2003) LSJS 431, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"restraining order"

POLICE v WILLING
[2005] SASC 294
Magistrates Appeal
GRAY J

This is a Crown appeal against the dismissal of a complaint by a magistrate.
Introduction
The Crown alleged that on 27 March 2004 at Holden Hill the respondent, Darren Alfred Willing, contravened a domestic violence restraining order imposed in the Magistrates Court on 23 January 2004.[1] The matter was heard before the Magistrates Court at Holden Hill on 16 March 2005. The respondent pleaded not guilty. At the close of the prosecution case, the magistrate dismissed the complaint on the basis that service of the restraining order had not been proved.
[1] Section 15(1) of the Domestic Violence Act 1994 (SA).
The domestic violence restraining order of 23 January 2004 was issued on behalf of Melisa Foley, the respondent’s ex-partner. Subject to any Family Court order, it restrained Darren Willing from being on any premises at which Ms Foley or her daughter may from time to time reside or work. The respondent was further restrained from:
-contacting, communicating or approaching directly or indirectly whether in person, by telephone, in writing or otherwise with Melisa Jane Foley and her daughter, other than via a solicitor; and
-assaulting, harassing threatening or intimidating Melisa Jane Foley and her daughter.
According to…

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 Willing

Details

AGLC: Police v Willing [2005] SASC 294
Case: [2005] SASC 294
Decision Date: 9 August 2005

CaseChat Overview and Summary

In the case of Police v Willing, the Crown appealed against the dismissal of a complaint by a magistrate, who held that the respondent had allegedly breached a restraining order. The respondent pleaded not guilty to the charge. During the trial, the Crown tendered a proof of service document as part of exhibit P1. The respondent then submitted to the magistrate that the proof of service document should be withdrawn from exhibit P1. The magistrate agreed, and the complaint was dismissed on the basis that the service of the restraining order had not been proved.

The court was required to decide whether the magistrate was correct in withdrawing the proof of service document from exhibit P1, and if so, whether the Crown had established a case to answer. The court also considered whether the appeal court could accept further evidence to remedy a mistake made at trial. The court found that the magistrate's decision to withdraw the proof of service document constituted an irregularity in the trial procedure, and that this gave rise to unfairness to the Crown. The court also found that the Crown had established a case to answer.

The appeal was allowed, and the decision of the magistrate dismissing the complaint was set aside. The proof of service was found to be wrongly withdrawn as an exhibit, and the proof should remain as part of exhibit P1. The matter was remitted to the magistrate for further hearing.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On appeal, counsel for the respondent accepted that exhibit P1 was a true and accurate photocopy of the original document. Production of the original was not required. Counsel for the respondent conceded that once the proof of service was admitted there was a case to answer. Counsel acknowledged that her client had in fact been served with the restraining order.Admission of Proof of Service into Evidence before this Court As a result of the above conclusion it is not necessary to consider the Crown’s alternative submission that the present case fell within the scope of Holder v Lewis[3] and thus it was appropriate for this Court to re-hear the matter and to receive the documents that originally formed exhibit P1 into evidence pursuant to section 28 of the Summary Procedure Act and section 45C of the Evidence Act. It was said that, should the restraining order and proof of service be admitted into evidence before this Court, proof of service being the only basis for the magistrate’s dismissal of the complaint, the prosecution had made out a case to answer. [3] (2003) 231 LSJS 431. In Holder v Lewis the Full Court considered the acceptance and use of further evidence upon appeal. It was concluded that further evidence could be admitted on an appeal to remedy a mistake made at trial. Doyle CJ, with whom Prior J and Perry J agreed, observed:[4]Power to admit the evidence is conferred either by s 42 (4) of the MCA or by r 97.18(b) of the Supreme Court Rules 1987 (SA).Section 42(4) of the MCA provides:(4) On an appeal, the appellate court may, if the interests of justice so require, re-hear any witnesses or receive fresh evidence.That provision should not be read as permitting the receipt of evidence only if that evidence was not reasonably available at trial. In some circumstances that will be the only justification for admitting further evidence. However, that should not be taken as the sole basis for the admission of evidence on appeal. I consider that the provision should be read as enabling the court to permit an oversight or mistake of the kind in question here to be corrected, if that can be done without causing any injustice. In short, the reference to “fresh evidence” should not be read as referring only to one kind of evidence of the type that appeal courts are often able or empowered to receive.In any event, r 97.18(b) of the Supreme Court Rules gives the court hearing such an appeal power to receive “further evidence upon any question of fact”. There is no doubt that that provision empowered the Judge to receive the evidence.The decision to admit the evidence was appropriate. The evidence in question was not contentious. The prosecutor should have tendered the evidence. Her decision not to do so was a mistake, partly attributable to the Magistrate’s intimation that the tender of the material should be deferred until after he had dealt with the challenge to the admissibility of the evidence of admissions by Mr Holder. The decision was not made for tactical reasons or to secure some advantage. Counsel for the defendants was well aware of the evidence, a copy of the documents having been provided to him. The interests of justice support allowing the mistake to be remedied. To do so is not unfair to the defendants, even though it assists the prosecution on the appeal. Even if the evidence had been tendered, the complaints would have been dismissed, and so the failure to tender the evidence has not affected the outcome of the proceedings in the Magistrates’ Court.[4] (2003) 231 LSJS 431 at [13] – [17].

Decision

Reasons for decision

These observations suggest that the proof of service notice withdrawn from exhibit P1 could be received by this Court into evidence on the grounds that the prosecutor’s alleged failure to tender the notice separately constituted a mistake giving rise to no unfairness to the respondent. However, as earlier observed, this was an alternative position submitted by counsel for the Crown. The primary position was that the magistrate erred in the withdrawal of the notice from the exhibit. As this primary position has been accepted it is unnecessary to determine this alternative issue.Conclusion The appeal is allowed. The proof of service was wrongly withdrawn as an exhibit. The proof should remain as part of exhibit P1. The ruling of the magistrate withdrawing the proof of service as part of exhibit P1 is set aside. The ruling of the magistrate dismissing the complaint is set aside. The prosecution has established a case to answer. The matter is remitted to the magistrate for further hearing.

Ratio Decidendi

Legal Principle Established

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