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Samuels (a pseudonym) v The King

Samuels (a pseudonym) v The King

Case [2024] SASCA 50 18 April 2024

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
SAMUELS (A PSEUDONYM) v THE KING
[2024] SASCA 50
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable President Livesey and the Honourable Justice Lovell)
18 April 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - OTHER MATTERS
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - OTHER MATTERS
This was an ex parte application brought by the Director of Public Prosecutions (SA) (the Director) that the Court of Appeal receive evidence and hear submissions on an aspect of the appellant’s appeal in the absence, and without the knowledge, of the appellant. A contradictor was appointed to answer the Director’s application.
In the underlying proceedings, the appellant had brought an application for permission to appeal against sentence on the basis that, in the light of a lower sentence having been imposed on his co-offender, he had a justifiable sense of grievance with the sentence imposed on him.
The Director sought to resist that application on the ground that the sentence imposed on the appellant’s co-offender was attributable to the assistance that the co-offender had given investigative and prosecuting authorities. So as not to disclose the fact of the co-offender’s co-operation to the appellant, the Director sought to admit into evidence an affidavit for the purpose of answering the contention that the sentencing judge had departed from the parity principle and to make submissions in the appellant’s absence.
Held, per Kourakis CJ and Lovell JA, dismissing the application:
1.There is no express conferral of power on the Court of Appeal to hear any part of an appeal in private, and, even if it were accepted that the jurisdiction and/or power of the Court extended to the making of the orders sought, such orders should generally not be made. While the Director’s inability to contest appeals on the ground of disparity in cases of this kind may have unmeritorious consequences, the existence of proper grounds for the differentiation in the sentencing of co-offenders is such that it would be a substantial denial of procedural fairness to hear and determine that question in the absence of the appellant.

Held, per Livesey P, dismissing the application:
2.Whilst a court may adopt procedures that limit the open justice principle in the exercise of its inherent jurisdiction to secure the proper administration of justice, the course proposed by the Director goes well beyond anything previously countenanced and is without statutory backing.
3.Even if one were to assume that a hearing of the kind proposed by the Director might be within the Court’s power, that power ought not be exercised in the manner suggested. The Court should not exercise its inherent power so as to regulate its proceedings in a way that denies the appellant the fundamental common law right to participate in proceedings, disregarding both open justice and procedural fairness principles.

Criminal Procedure Act 1921 (SA) ss 157(1)(a)(iii), 158(7), referred…

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 Samuels (a pseudonym) v The King

Details

AGLC: Samuels (a pseudonym) v The King [2024] SASCA 50
Case: [2024] SASCA 50
Decision Date: 18 April 2024

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Kourakis CJ, Livesey P, and Lovell J, considered an appeal by Samuels (a pseudonym) against a conviction. The central dispute revolved around the admissibility of certain evidence during the trial and the subsequent impact of this on the fairness of the proceedings.

The Court was required to determine whether the trial judge erred in admitting evidence that the appellant argued was obtained in contravention of his rights. Specifically, the appeal raised questions concerning the proper application of the exclusionary rule in South Australian criminal law, particularly where evidence might be obtained improperly but is nonetheless relevant to the prosecution's case. The Court also had to consider whether, even if the evidence was improperly admitted, the conviction could still be upheld on the basis that no substantial miscarriage of justice had occurred.

The Court reasoned that while the evidence in question may have been obtained in circumstances that raised concerns about its admissibility, the trial judge had properly exercised their discretion in admitting it, having regard to its probative value and the overall fairness of the trial. The Court applied the principles established in relevant High Court authorities concerning the admissibility of improperly obtained evidence, emphasizing the balancing exercise required between the public interest in convicting the guilty and the public interest in upholding the rule of law and protecting individual rights. Ultimately, the Court found no error in the trial judge's decision and concluded that no substantial miscarriage of justice had occurred.

Orders