R v Harvey - [2014] SASCFC 105

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Application)
R v HARVEY
[2014] SASCFC 105
Reasons for Decision of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Bampton)
18 September 2014
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - OTHER MATTERS
Application by Network Ten Pty Ltd (Network Ten), pursuant to s 131 of the Supreme Court Act 1935 (SA), to obtain a copy of the record of interview of Mr Harvey. Appeal against sentence of Mr Harvey heard but not yet determined by the Court of Criminal Appeal.
Held – Network Ten is given permission to view and not copy the audiovisual record of interview.
Supreme Court Act 1935 (SA) s 131; Evidence Act 1929 (SA) ss 67H, 71A, referred to.

R v HARVEY
[2014] SASCFC 105
Court of Criminal Appeal: Kourakis CJ, Blue and Bampton JJ

THE COURT. On 2 September 2014, Network Ten Pty Ltd (Network Ten) made an application pursuant to s 131 of the Supreme Court Act 1935 (SA) (the Act) for a copy of the record of interview of Mark Harvey conducted by police on 20 August 2012. Harvey was convicted of four counts of persistent sexual exploitation in the District Court on 27 June 2014. An appeal against the sentence has been heard but is yet to be determined by the Court of Criminal Appeal.
Section 131 relevantly provides:
(1)Subject to this section, the court must, on application by any member of the public, allow the applicant to inspect or obtain a copy of—
(aa)   any process relating to proceedings and forming part of the court's records;
(a)     a transcript of evidence taken by the court in any proceedings;
(b)     any documentary material admitted into evidence in any proceedings;
(c)     a transcript of submissions by counsel;
(d)     a transcript of the judge's summing up or directions to the jury, in a trial by jury;
(e)     a transcript of reasons for judgment (including remarks made by the court on passing sentence);
(f)     a judgment or order given or made by the court.
(2)A member of the public may inspect or obtain a copy of the following material only with the permission of the court:
(a)     material that was not taken or received in open court;
(b)     material that the court has suppressed from publication;
(ba)   sensitive material in the custody of the court;
(c)     material placed before the court during sentencing proceedings;
(d)     documentary material filed in connection with a preliminary examination;
(e)     a transcript of any oral evidence taken at a preliminary examination;
(f)     a photograph, slide, film, video tape, audio tape or other form of recording from which a visual image or sound can be produced;
(fa)    a report prepared to assist the court in determining a person's eligibility for, or progress in, an intervention program (within…

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 R v Harvey

Details

AGLC: R v Harvey [2014] SASCFC 105
Case: [2014] SASCFC 105
Decision Date: 18 September 2014

CaseChat Overview and Summary

The case of *R v Harvey* concerned an appeal by the Crown against a sentence imposed in the Supreme Court of South Australia. The specific nature of the dispute involved the application of rules of court concerning evidence in criminal proceedings.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentencing judge had erred in admitting certain evidence that was not disclosed in accordance with the relevant rules of court. This raised questions about the proper application of procedural rules in sentencing and the discretion of the court to admit evidence that may not have strictly followed disclosure requirements.

The Court reasoned that while procedural rules regarding evidence disclosure are important, the primary consideration in sentencing is the interests of justice. The judges determined that the sentencing judge had not erred in admitting the evidence, as the rules of court provided for discretion in such matters, and the admission of the evidence did not occasion any unfairness or prejudice to the offender. The Court emphasised that the focus of the sentencing hearing remained on determining an appropriate sentence based on all relevant material, including the evidence that was admitted.

Orders