Price v Police - [2008] SASC 208

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PRICE v POLICE
[2008] SASC 208
Judgment of The Honourable Justice Vanstone
30 July 2008
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MATTERS CONNECTED WITH CONDUCT OF DEFENCE
Application for extension of time in which to appeal against conviction - appellant convicted in Magistrates Court for threatening to cause harm and disorderly behaviour - appellant complaining of his counsel's conduct in presenting his defence - complaint also of prosecution's failure to disclose evidence. Held: allegations against former counsel and prosecution not made out - application for extension of time refused.
Listening and Surveillance Devices Act 1972 s4, s7, referred to.

PRICE v POLICE
[2008] SASC 208
Magistrates Appeal
Criminal

VANSTONE J: Wayne Robert Price was tried in the Magistrates Court upon an information charging him with assault, threatening to cause harm, disorderly behaviour and indecent behaviour. He was convicted only for threatening harm and disorderly behaviour. Some two months after the Magistrate’s decision was delivered he filed a notice of appeal against conviction, citing several grounds. He seeks an extension of time within which to appeal, which is opposed.
Grounds of appeal
Although the appellant was represented in the Magistrates Court, he filed his notice of appeal without legal advice and he represented himself in this court.
The grounds as filed were somewhat amorphous and the appellant’s argument went beyond their terms. I did not insist on the appellant confining his submissions to the grounds as filed. For various reasons, the hearing of the appeal necessitated four hearing dates spanning three months.
The first two grounds contained claims that relevant evidence was wrongfully withheld from the court, first by the police prosecutor and second by arrangement between the police prosecutor and defence counsel. During submissions these grounds were effectively expanded to take in more general allegations against the appellant’s former counsel, who ultimately gave evidence in the matter.
In support of these grounds the appellant suggested that the complainant – who was his neighbour and with whom he had a history of disputation – kept a closed circuit television camera trained on his house and the roadway in front of it. He suggested that film, which he believed would have been taken on the days upon which the offences were said to have occurred, should have been presented to the court by the prosecution. He argued that there was an obligation upon the prosecution to present all relevant evidence and that this was plainly relevant because it had the capacity to refute the allegations. He further suggested that because of an agreement struck between the prosecuting counsel and his own counsel, to which he was not privy, the material was not tendered.
Originally, the assertions made by Mr Price were not underpinned by any evidence on oath. He frankly acknowledged that the only videotape seen by him and said to have emanated from the complainant’s camera, had contained…

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.

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Details

Case: [2008] SASC 208
Decision Date: 30 July 2008

CaseChat Overview and Summary

The case of Price v Police involved an appeal against a conviction in the Magistrates Court of South Australia. The appellant, Price, was convicted of threatening to cause harm and disorderly behaviour. He sought an extension of time to appeal against his conviction, citing concerns about his former counsel's conduct and the prosecution's failure to disclose evidence. The Supreme Court was tasked with deciding whether the allegations against Price's former counsel and the prosecution were substantiated, and if the grounds for appeal were valid.

The court examined the evidence provided by Price, which included claims that his former counsel did not properly represent him and that the prosecution failed to disclose certain evidence. The court also considered the evidence from the complainant, who testified about her interactions with Price. The court scrutinised the conduct of Price's former counsel, who testified under cross-examination. The court noted that the allegations against the defence counsel and the prosecution did not hold up under scrutiny.

In its decision, the court found that none of the grounds for appeal were meritorious. The court concluded that the allegations against Price's former counsel and the prosecution were not substantiated. The court also determined that the grounds for appeal were not arguable. Consequently, the Supreme Court refused the application for an extension of time to appeal. The final order of the court was that the extension of time within which to appeal was refused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Upon questioning the appellant, it emerged that his grounds for believing that the complainant had some sort of mental condition were that, according to him, on one occasion she smashed a number of windows in her house and was removed from the house by ambulance. According to the appellant she later told him that she had been taken to “the nut house” and kept there for a week.Evidence of appellant’s former counsel In view of the quite serious and wide-ranging allegations about defence counsel’s conduct of the appellant’s trial, I asked my associate to issue an invitation to him on behalf of the court to give evidence and to submit himself to Mr Price’s cross-examination. He co-operated fully in that process. Under questioning by me, defence counsel said that he has been a barrister and solicitor for almost 20 years. He is now a sole practitioner. He practises solely in the area of criminal law. Most of his practice is in the Magistrates Court. When he was first retained by Mr Price, it was to represent him, not only for the charges now subject to appeal, but also in relation to some separately charged offences. He said he took instructions about the matters now under consideration from time to time, both on occasions when the matters were mentioned, at the Magistrates Court and also, at least once, at Mr Price’s home. He received instructions both in the form of letters which the appellant wrote to him and orally. He had returned all the papers in relation to these matters to the appellant at the time when his retainer was terminated, being in January 2008. Defence counsel said that he believed he had a good rapport with Mr Price. He said that he made a point of establishing good relationships with his clients. He said that the appellant’s positive attitude to him only changed after he was convicted of two of the four charges for which he was tried. Later, he provided the appellant with a form upon which he could appeal and, as I said, returned the papers that he had. I directed defence counsel’s attention to the several topics about which Mr Price had made particular complaint. Defence counsel said that the appellant gave him a videocassette recording which had been made by the appellant himself and appeared to show a number of separate incidents occurring in the appellant’s street. He said it did not contain any part of any of the incidents on which the charges were based. He could not recall Mr Price providing any other recorded materials. He discussed that recording with Mr Price, advising him that it was necessary to confine the case to the facts alleged and to “stay relevant”. He said the appellant appeared to accept his advice that it was better not to try to use the videocassette in evidence at the trial. Defence counsel said he recalled being given a tape by the police prosecutor. That might have occurred about six months prior to the hearing. He was told that it had been generated by the complainant. He looked at it and saw that it contained extended footage of the appellant walking up and down a road. It also showed the appellant’s arrest by police. Defence counsel said he considered it contained no material helpful to the appellant and was, in any event, inadmissible. He said to his client that if the police attempted to use it he would challenge its admissibility. In the event, the prosecutor did not tender it.

Decision

Reasons for decision

I have read the evidence given by the complainant. As I said earlier, at times she became quite distressed by the task of giving evidence. I am satisfied that the magistrate had ample opportunity to observe the witness. Even had it been established that she had from time to time suffered from a psychological or psychiatric problem, that of itself would be no reason for the magistrate to reject her as a witness of truth and accuracy. In circumstances where defence counsel did not raise with her any issue as to her mental health (for reasons he explained), I am not persuaded that this ground amounts to any more than an afterthought. In my view it is without substance.Conclusion I have treated this application for an extension of time within which to appeal as a properly instituted appeal. None of the grounds of appeal is meritorious. Indeed I do not consider that any one of them is arguable. For that reason it is not appropriate to grant permission to appeal. In those circumstances I make the following order:1. extension of time within which to appeal refused.

Ratio Decidendi

Legal Principle Established

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