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 37Magistrates 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…
Continue reading SARRET v Police
Sign in free to access the full text
- AGLC
- SARRET v Police [2012] SASC 37
- Case
- [2012] SASC 37
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.