Sharman v Police - [2015] SASC 159

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SHARMAN v POLICE
[2015] SASC 159
Judgment of The Honourable Justice Vanstone
7 October 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISCONDUCT OF COUNSEL - IN GENERAL
Appeal against convictions for assault and assault causing harm - whether defence of the appellant was conducted with flagrant incompetence - whether necessary to show that the incompetence affected the result of the trial.
Held: appeal allowed.
Criminal Law Consolidation Act 1935 (SA) s 353, s 353(1); Magistrates Court Act 1991 (SA) s 42, s 42(5); Criminal Appeal Act 1912 (NSW) s 6(1), referred to.
TKWJ v The Queen (2002) 212 CLR 124, discussed.
Wigg v Architects Board (SA) (1984) 36 SASR 111; Police v Cadd (1997) 69 SASR 150, considered.

SHARMAN v POLICE
[2015] SASC 159
Magistrates Appeal: Criminal

VANSTONE J: On 27 May 2015 the appellant stood trial before a magistrate on charges of assault and aggravated assault causing harm. The trial occupied one day only and the appellant was convicted for both counts. He now appeals against those convictions of the basis that his counsel conducted the trial in an incompetent manner.
Background
The prosecution case was that the incident giving rise to the charges occurred at about half past two or three o’clock on the morning of 10 May 2014. It was alleged that the appellant had come to the home of the prosecution witness, Mr Shaw, that he had entered the home and there assaulted the victim of count 2, Ms Lanc, by repeatedly kicking her. It was further alleged that her son Jordan, who was nine years old, protested against the appellant’s actions and was then pushed through a sliding glass door by the appellant, causing Jordan to suffer a gash to his forehead.
Ms Lanc and the appellant were in some sort of relationship at this time, although Ms Lanc had been staying with Mr Shaw for a period. By the time of the trial Ms Lanc had indicated that she was not prepared to give evidence, and neither she nor Jordan were called by the prosecution. Indeed, as will be seen, Ms Lanc was called as a defence witness. However, Mr Shaw claimed to have witnessed both incidents and gave clear and coherent evidence about them, which was accepted by the magistrate. In support of that eye-witness evidence, the prosecution tendered photographs of the broken glass door and the scene generally, as well as medical evidence relating to Jordan’s injuries.
The appellant gave evidence in his defence. He said that he had arrived at Mr Shaw’s home to return Ms Lanc’s car and to receive repayment of a loan which he had made recently to Ms Lanc for Mr Shaw’s benefit. He said that he and Ms…

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 Sharman v Police

Details

AGLC: Sharman v Police [2015] SASC 159
Case: [2015] SASC 159
Decision Date: 7 October 2015

CaseChat Overview and Summary

In the case of Sharman v Police, the appellant, Sharman, appealed against his convictions for assault and assault causing harm. The matter was heard by the Supreme Court of South Australia. The primary issue before the court was whether the appellant's defence was conducted with such flagrant incompetence that it necessitated a new trial. The court had to determine if the incompetence of the defence counsel affected the result of the trial, which would warrant a new hearing.

The court considered the nature of the appeal under the Magistrates Court Act 1991 (SA) and the Criminal Law Consolidation Act 1935 (SA). It noted that an appeal of this nature is a rehearing of the cause at the date of the appeal, with the power to receive further evidence. The court acknowledged that while the magistrate made firm findings about the evidence of critical witnesses, the appellant's trial counsel allowed his practising certificate to lapse, which is a matter to be referred to the Legal Profession Conduct Commissioner. The court concluded that the appellant's defence counsel was unprepared and disorganised, which was detrimental to the appellant's case.

The Supreme Court allowed the appeal, set aside the verdicts of the magistrate, and remitted the matter to the Magistrates Court for a new hearing. The court found that the incompetence of the defence counsel constituted a material irregularity, which was sufficient to warrant a new trial without the need to establish that it affected the result of the trial. The court highlighted the importance of a legal practitioner being properly prepared to represent their client effectively, especially in serious charges. The decision underscores the gravity of a lawyer's dereliction of duty and the impact it can have on the administration of justice.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I note that trial counsel allowed his practising certificate to lapse as at 30 June 2015. Notwithstanding that fact I consider that it is appropriate to refer this judgment to the Legal Profession Conduct Commissioner.Conclusion For these reasons I would allow the appeal. The orders I make are:1. allow the appeal;2. set aside the verdicts of the magistrate; and3. remit the matter to the Magistrates Court for a new hearing.

Ratio Decidendi

Legal Principle Established

It is true, as Ms J Litster for the respondent forcefully argued, that the magistrate made very firm findings about the evidence of the three critical witnesses. Plainly, the case did not turn on a knife edge. Mr Shaw’s evidence reads well and, on the face of it, was the evidence of an independent witness. Ms Litster argued that no miscarriage of justice could be shown.Consideration In Wigg v Architects Board (SA) (1984) 36 SASR 111 Cox J considered the nature of an appeal under the Architects Act 1939-1975 (SA) and in so doing, considered the various types of appeals. His Honour said that the first kind of an appeal was “strictly so called”. Next was described an appeal by way of rehearing, which the current proceeding is. At 113 Cox J said:This is a rehearing on the documents, but with a special power to receive further evidence on the appeal. The latter power is necessary, because the question on a rehearing of this kind is whether the order of the court below ought to be affirmed or overturned in the light of the material before the appeal court at the time it hears the appeal. His Honour went on to contrast this with an appeal de novo. In Police v Cadd (1997) 69 SASR 150 Lander J discussed the nature of an appeal under s 42 of the Magistrates Court Act 1991 (SA). He said (at 189):It is an appeal by way of rehearing which means a rehearing “of the cause at the date of the appeal, that is ‘by trial over again on the evidence used in the court below; but there is special power to receive further evidence’: in Re Chennell: Jones v Chennell (1878) 8 Ch D 492)”, per Mason J in Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616 at 619. See also Wigg v Architects Board (SA) (1984) 36 SASR 111. An appeal under the Justices Act 1921 (SA) was in the nature of a rehearing: Gray v Jones [1948] SASR 201.The other judges making up the court did not find it necessary to discuss this issue but I do not consider that there is any controversy in what Lander J said. In circumstances where the appellant claims that conduct of his trial by counsel was incompetent it seems to me that the contrast between the nature of an appeal under s 42 of the Magistrates Court Act 1991 (SA) as against s 353 of the Criminal Law Consolidation Act 1935 (SA) might be important. I consider that there is some scope for saying that if the appellant satisfies the court that there has been a miscarriage of justice in the sense of a material irregularity, then there is no warrant for the court to go further to determine whether that irregularity had an impact on the result of the trial. It is most regrettable that defence counsel allowed this trial to proceed in circumstances where he was entirely unprepared to act effectively for the appellant. In his affidavit he frankly acknowledged that he should have sought an adjournment and did not. The charges were serious and, the appellant having engaged a legal practitioner, was entitled to expect that he would be properly prepared to represent his client to the best of his ability. I consider that allowing the trial to proceed when he was in such a state of disorganisation and dereliction of his duty to his client reflects very poorly on trial counsel.