Sharman v Thomas

[2020] SASCFC 52

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

SHARMAN v THOMAS

[2020] SASCFC 52

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Hughes)

18 June 2020

ENVIRONMENT AND PLANNING - PARKS AND RESERVES - REGULATION OF ACTIVITIES WITHIN PARKS AND RESERVES

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF VERDICT OF ACQUITTAL - WHERE CONVICTION QUASHED AND VERDICT OF ACQUITTAL ENTERED

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - WHEN NEW TRIAL GRANTED

The appellant was found guilty of one count of harming snapper and seven counts of removing snapper from a marine park in contravention of s 17(1) of the Marine Parks Act 2007 (SA) and the regulations made thereunder. He was a licensed commercial fisher. The offending was found to have occurred in a sanctuary zone known as the Clinton Wetlands Sanctuary Zone in the upper Gulf St Vincent marine park.

The appellant propounds ten grounds of appeal, which give rise to the following five issues:

1.  Whether the trial judge misused the concept of improbability reasoning to find the appellant guilty beyond reasonable doubt (appeal grounds (a)-(d), (f) and (h)-(k));

2. Whether the trial judge erred in admitting into evidence, pursuant to s 34P of the Evidence Act 1929 (SA), a particular conversation between the appellant and a marine parks officer concerning the appellant’s reference to two places within the sanctuary zone being his best fishing spots (appeal grounds (a)-(d));

3.  Whether the judge erred in failing to grant an application for a mistrial after he allowed the respondent to discredit its own witness, Mr Barker, during the defence case, having relied upon his evidence as part of the prosecution case (appeal ground (e));

4.  Whether the trial judge made errors of fact in respect of the evidence given by the prosecution witnesses and the use of the GPS data as evidence of fishing (appeal grounds (f), (h) and (i)); and

5.  Whether the trial judge erred in directing himself as to the onus and standard of proof together with the application of inferential reasoning (appeal grounds (j) and (k)).

The respondent submits that the trial judge properly applied improbability reasoning, that the ‘discreditable conduct’ was properly admitted into evidence, that there was no miscarriage of justice, and there was no error in respect of the burden and standard of proof. Finally, the respondent submits that any factual errors made by the trial judge were not material, and this Court can confirm the findings of guilt (pursuant to s 42(5)(a) of the Magistrates Court Act 1991 (SA) which governs the appeal) because the charges were so clearly proven that it is inevitable the trial judge would have found them proven irrespective of the error.

Held per Stanley J (Kourakis CJ and Hughes…