SARRET v Police - [2012] SASC 37

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SARRET v POLICE
[2012] SASC 37
Judgment of The Honourable Justice Vanstone
14 March 2012
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN
CRIMINAL LAW - PROCEDURE - COURSE OF EVIDENCE, STATEMENTS AND ADDRESSES - ADDRESSES - GENERALLY
Appeal against conviction - appellant was convicted of aggravated assault - whether magistrate impermissibly admitted affidavit of witness where witness not competent to give evidence - whether magistrate impermissibly admitted and used evidence of victim's complaint - whether police prosecutor impermissibly cross-examined accused as to why witness might be motivated to lie.
Held: appeal allowed.
Evidence Act 1929 (SA) s 6, s 29, s 34CA, referred to.
Palmer v The Queen (1998) 193 CLR 1; Hargraves v The Queen (2011) 85 ALJR 1254, applied.
R v Byerley (2010) 107 SASR 517, considered.

SARRET v POLICE
[2012] SASC 37
Magistrates Appeal

VANSTONE J: After a trial in the Magistrates Court occupying some three days, the appellant was convicted for aggravated assault committed upon a young man, “V”. The assault was found to have been committed on 27 November 2009 in the course of the appellant’s employment by Disability SA as a disability care worker in a program called Northlink, run in a hall at Queenstown. The appeal against the conviction is on grounds that inadmissible evidence was adduced. There is also an appeal against sentence.
Background
The victim was then a man of 22 years and suffered from a relatively significant mental disability. Medical and psychological material before the magistrate suggested he met the criteria for “intellectually disabled”. That, together with his appearance before the magistrate, led her to conclude that he was “not able to give evidence”.
The prosecution case rested mainly on the evidence of an eye-witness, “Ms F”, who worked with the appellant at the program. Ms F described the assault as occurring when the appellant intervened in a “play fight” between V and another client, one “P”. Ms F said that she saw the appellant run some metres towards the two clients and then kick V to the stomach, saying to him words like: “What you do to other people I will do to [you]”. She saw V fall to his knees, apparently in pain.
The prosecution also called other staff who were present in the hall, including one called Anthony, but there was no direct evidence to support Ms F’s. The mother of V was called. She gave evidence that on the night of this incident V complained of a sore stomach. A few days later, she said V told her that the appellant had kicked him and she saw that he had a mark on his stomach.
Evidence was led of an interview of the appellant by police which took place on 12 July 2010. The account he gave of the incident was broadly similar…

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 SARRET v Police

Details

AGLC: SARRET v Police [2012] SASC 37
Case: [2012] SASC 37
Decision Date: 14 March 2012

CaseChat Overview and Summary

The appellant, SARRET, appeals against his conviction for aggravated assault. The appeal was heard in the Supreme Court of Queensland. The central issues in this case revolve around the admissibility of certain pieces of evidence during the trial. Specifically, the appellant argues that the magistrate impermissibly admitted an affidavit from a witness who was not competent to give evidence. Additionally, the appellant contends that the magistrate improperly admitted and used evidence of a complaint made by the victim, which was not admissible under the law. The appellant also argues that the police prosecutor improperly cross-examined him regarding a potential motive for the witness to lie.

The court examined whether the magistrate correctly admitted the evidence of the victim's complaint and whether the cross-examination by the police prosecutor regarding the witness's potential motive was permissible. The court found that the evidence of the complaint was not admissible as it did not pertain to a sexual offence and the victim did not testify. The statutory provisions under the Evidence Act, which allow for the admission of complaints in sexual offence cases, do not apply here. Furthermore, the court found that the cross-examination regarding the witness's potential motive was improper as there was no objection to the questions at the trial. The court concluded that the magistrate should have intervened to disallow such questions.

The appeal against conviction succeeds due to the errors identified in the admission of inadmissible evidence and the improper cross-examination. The conviction for assault with a circumstance of aggravation is set aside, and the matter is remitted to the Magistrates Court for re-trial. The court did not finally determine the issue of sentence, as the conviction is quashed. However, it noted that the penalty imposed was within the range of penalties available to the magistrate. The orders made are that the appeal against conviction is allowed, the conviction is set aside, and the matter is remitted for re-trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In those circumstances it is unwise to say more than that I consider the use made of the statements by the magistrate was open to her, once the statements were in. As I said, they were tendered by defence counsel. The appellant is bound by the course of the trial and the ground of appeal must fail.Ground 6 – the evidence of “complaint” The foster mother of V, Ms W, gave evidence in answer to the police prosecutor that V complained to her on the day of the assault that he was in pain on his left side and the following day told her that one of the workers, called Gus [the appellant] had kicked him. She was cross-examined by defence counsel to the effect that much of the detail surrounding V’s complaint was not part of her statement to police. Her response was that she had been told that only a short statement would be taken from her. Later in the trial Ms W was recalled, apparently in relation to how V’s statement to police was compiled. However in the course of cross-examination on that occasion Ms W’s statement to police was tendered by defence counsel. The terms of that statement, as it related to the complaint made to her by V, were broadly similar to the evidence she gave. The evidence of V having complained of being hit or kicked by “Gus” was not admissible. This was not a complaint of a sexual offence. The common law rule enabling the leading of evidence of recent complaint was always specific to sexual offences. The statutory replacement of that rule found in s 34M of the Evidence Act likewise relates only to sexual offences. Indeed, even had this charge been of a sexual nature, the complaint would not have been admissible at the instance of the prosecution as V did not give evidence and his consistency was not in issue. The admission of inadmissible material of this out of court conversation led to cross-examination of Ms W on what she had told police about it, and then to her police statement going into evidence. None of that should have occurred. It is apparent that the magistrate placed some weight – although perhaps not much – on her acceptance of Ms W’s evidence that the complaint was made and its terms to assist in proof that the appellant’s actions were without V’s consent: [80]. Such a use was perhaps not critical in the circumstances of this case as plainly Ms F’s evidence was sufficient to prove lack of consent. However, in a case where there was a clear conflict of evidence between Ms F and the appellant as to the nature of the interaction and the circumstances in which it occurred, no doubt the terms of the conversations between Ms W and V would have tended to confirm in the magistrate’s mind the accuracy of Ms F’s observations. The evidence should not have been admitted and I cannot be satisfied that it had no impact upon the magistrate’s deliberations.Grounds 7 and 8 – cross-examination as to motive These grounds complain that the magistrate allowed cross-examination of the appellant going to his knowledge of any motive Ms F might have to falsely implicate him, and then used against him his inability to provide such a motive. As I have noted, there was no objection to the questions asked by the police prosecutor of the appellant going to his knowledge of motive. Accordingly, ground 7 really amounts to a complaint that the magistrate failed to intervene to disallow those questions.

Decision

Reasons for decision

As the conviction is to be quashed by reason of the errors identified in grounds 4 and 6 I need not finally determine the issue of sentence. However, I would say that in my view the penalty imposed was not outside the range of penalties available to the magistrate in all the circumstances of this matter.Conclusion For the foregoing reasons the appeal against conviction succeeds. It is unnecessary to finally determine the appeal against sentence. The orders I make are:1.the appeal against conviction is allowed;2.the conviction for assault with a circumstance of aggravation is set aside;3.the matter is remitted to the Magistrates Court for re-trial.

Ratio Decidendi

Legal Principle Established

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