R v Roberts - [2016] SASC 193

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v ROBERTS & ORS
[2016] SASC 193
Reasons for Decision of The Honourable Justice Peek
14 December 2016
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - EVIDENCE - BURDEN AND STANDARD OF PROOF
Disputed Facts Hearing.
Messrs Roberts, Kotz and Fraser each pleaded guilty to one count of participation in a criminal organisation and one count of aggravated theft, contrary to ss 83E(1) and 132(1) of the Criminal Law Consolidation Act 1935 respectively.
There was a dispute between the prosecution and the accused as to the circumstances of the offending. The three accused disputed the prosecution’s contention that they attended at the property with an expectation that if the resident was at the house, they were to detain him for the purpose of collecting a sum of money from him, and that they were directed to do so by the President of the Nomads Outlaw Motorcycle Club. Mr Kotz also disputed that it was him who kicked in the door. None of the accused persons gave evidence.
Factual basis for sentence.
Discussion of the doctrine in R v Perre (1986) 41 SASR 105.
Held:
1.       The prosecution has proven beyond reasonable doubt that it was Mr Kotz that kicked in the front door.
2.       The prosecution has proven beyond reasonable doubt that Messrs Kotz and Roberts attended at the property with the expectation that the resident of the house was to be detained for the purpose of collecting a sum of money from him, and that they were directed to do so by the president of the Motorcycle Club.
3.       The prosecution has not proven beyond reasonable doubt that Mr Fraser attended the property with that expectation.
Criminal Law Consolidation Act 1935 ss 83E, 132, referred to.
R v Perre (1986) 41 SASR 105, applied.

R v ROBERTS & ORS
[2016] SASC 193
Criminal: Disputed Facts Hearing
PEEK J.

The Director of Public Prosecutions laid an Information for arraignment on 17 June 2016 containing 12 counts against the nine defendants, Messrs Pishdari, Beedar, Mackay, Johnston, Roberts, Kotz, Reynolds, Mitchell and Fraser (the nine defendants).[1]
[1] Originally, an Information was laid for arraignment on 21 March 2016 containing seven counts against the defendants Pishdari, Mackay, Johnston, Roberts, Kotz, Mitchell and Fraser. That Information was superseded by the 12 count Information charging the additional defendants Beedar and Paul Reynolds.
Following various applications by defendants, on 12 July 2016 an order was made severing counts in the Information such that there would be three trials. In accordance with the preference of the Director of Public Prosecutions as to the order of conducting those trials, they became as follows:[2]
[2] Originally, count 3 was intentionally not allocated to any of the three trials pending further consideration by the Director of Public Prosecutions concerning that charge.

Trial
Counts
Defendants

Trial 1 4, 11 and 12 Pishdari, Mackay,…

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 Roberts

Details

AGLC: R v Roberts [2016] SASC 193
Case: [2016] SASC 193
Decision Date: 14 December 2016

CaseChat Overview and Summary

This case involved a directions hearing concerning the disputed facts hearing for a sentencing procedure. The defendants did not intend to call their clients to give evidence. The court referred counsel to the decision in R v Perre, which stated that the sentencing judge is required to sentence upon the basis of the sworn depositions or statements. If a defendant wishes to dispute any of the primary facts deposed to, they must do so by sworn evidence either at the preliminary hearing or before the sentencing judge. The court in Maitland and Vecsey emphasised that an accused person is entitled to the benefit of any doubt if any matter is left open on the statements, but a matter is not “left open” simply because a matter may be dealt with in one statement and not referred to in another.

The legal issues that the court was required to decide included the burden and standard of proof in relation to disputed facts in sentencing procedures, and whether the defendant was entitled to the benefit of any doubt if any matter was left open on the statements. The court was required to determine whether the defendants' counsel's submissions could be acted upon if not disputed by the Crown, or whether the defendants had to give sworn evidence if disputed by the Crown.

The court held that the sentencing judge was entitled to discard the appellant's version of his role if there was ample material to support the inferences drawn from the primary facts deposed to in the sworn statements. The court emphasised that the decision as to the basis upon which sentence is to be imposed was not a matter for the prosecution but for the judge. The court also held that an accused person was entitled to the benefit of any doubt if any matter was left open on the statements, but a matter was not “left open” simply because a matter may be dealt with in one statement and not referred to in another. The court further held that any submissions put by the defendant's counsel could only be acted upon if not disputed by the Crown. If disputed by the Crown, the defendant had to give sworn evidence.

There were no final orders made in this case as it was a directions hearing concerning the disputed facts hearing.

Orders

Orders of the court

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Background

Background to the litigation

On Monday 19 September 2016, a directions hearing was held concerning the disputed facts hearing scheduled for the following day. Counsel for the defendants indicated that they did not intend to call their clients to give evidence. The Court referred counsel to the decision in R v Perre. King CJ there stated:[3] The sentencing judge is required ordinarily to sentence upon the basis of the sworn depositions or statements. If the defendant wishes to dispute any of the primary facts deposed to therein, he must do so by sworn evidence either at the preliminary hearing or before the sentencing judge. Where a defendant, while not disputing the primary facts deposed to, wishes the sentencing judge to sentence about the basis of a certain interpretation of those facts or upon a version of the defendant’s role in the matter which may be in conflict with inferences from the primary facts which are open to the judge, he must make a decision as to the course which he wishes to follow. The defendant may give evidence or call evidence in support of his interpretation or version, or he may put it before the judge by way of submissions by his counsel asking the judge to act upon that interpretation or version. The prosecution may or may not make submissions accepting or opposing the interpretation or version put forward. The decision as to the basis upon which sentence is to be imposed is not, however, a matter for the prosecution but for the judge. …In the present case, counsel put forward a version of the appellant’s role which the learned sentencing Judge found to be in conflict with the inferences which he drew from the primary facts deposed to in the sworn statements. There was ample material to support those inferences and he was perfectly entitled to discard the appellant’s version of his role. (Emphasis added)[3] (1986) 41 SASR 105, 105-106. To the same effect, Prior J stated:[4][4] (1986) 41 SASR 105, 107-108.The principles applicable to disputed questions of fact were authoritatively stated by this Court in Reg v Maitland. The Court there agreed with what was said by Travers J in Reg v Vecsey. On sentencing.One should prima facie act on what is disclosed in the depositions as being the facts. Those facts have already been sworn to. Supplementary and additional matters put by the defence, if not disputed by the Crown, may be accepted and acted upon without being supported on oath, but if those matters are disputed, they can be decided only by the sworn evidence of both parties.In Maitland, the Court of Criminal Appeal added:If an accused person agrees that he is guilty of conduct constituting the crime charged, but does not admit the truth of the evidence given by prosecution witnesses as to matters which do not affect the question of his guilt, but are relevant only on the question of penalty, his proper course is to give and, where appropriate, call evidence at the preliminary hearing, or failing that, after notice to the prosecution, to seek leave of the trial Judge to give or call evidence when he comes before the Criminal Court for sentence.The Court of Criminal Appeal also said:Whether an accused person is to be sentenced on the basis of the depositions or statements submitted under s 57a of the Criminal Law Consolidation Act, or after the trial Judge has heard evidence in so far as the depositions, statements or evidence leave any matter open, the accused is entitled to have the benefit of any doubt that there may be.The statements used in these proceedings were statements verified in accordance with sub-s (3) of s 106 of the Justices Act, 1921. Those statements are, by sub-s (2) of s 106, “deemed to have been duly taken by” the Magistrate at the committal proceedings, which in this case, occurred at Adelaide on 30th April, 1985. On that occasion statements verified were accepted. Those statements are therefore to be treated in the same way as depositions or evidence given at a preliminary hearing for the purposes of the statement of principle in Maitlandand Vecsey. The appellant is entitled to the benefit of any doubt if any matter is left open on the statements, but a matter is not “left open” within the meaning of that phrase in Maitland simply because a matter may be dealt with in one statement and not referred to in another. … Any submissions put by the defendant’s counsel could only be acted upon if not disputed by the Crown. If disputed by the Crown, the defendant had to give sworn evidence. If he gave sworn evidence, that might have generated the benefit of doubts in his favour. (Emphasis added)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J

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Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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Trial	Counts	Defendants
Trial 1	4, 11 and 12	Pishdari, Mackay,…