Shaw v Police No. Scgrg-99-1096 Judgment No. S438

SHAW v POLICE

[1999] SASC S438

MAGISTRATES APPEAL

1 MILLHOUSE J. There seems to me to be a dispute of facts here. The accused pleaded guilty to an act likely to cause harm. What happened was that the appellant smashed the windscreen of a car, in a carpark at night, as the driver, a young woman, was attempting to drive away. The woman says that the accused followed her to the car before the attack. The appellant says, he thought he recognised the car as belonging to someone who owed him money, that he did not follow the woman to the car. The learned special magistrate has adopted the victim's account, saying the appellant followed a person to a car.
2 She ended her sentencing remarks by saying:
"I have no doubt at all that a sentence of imprisonment is clearly called for and that suspension is simply not an option given the seriousness of the circumstances of the offending."
3 She gave him four months.
4 Mr McGee for the appellant, argues that the learned magistrate should have cleared up the discrepancy instead of accepting the prosecution version which shews rather more serious offending. This may have tipped the scales against suspension.
5 The solicitor for the appellant at the Magistrates Court hearing, in an affidavit says:
"Her Honour raised some questions in relation to the appellant's version of events. I submitted that if she was not prepared to sentence him on the basis of his version of the events then the matter would need to be set down for a disputed facts hearing. She proceeded with the matter."
6 With respect, I do not think the learned magistrate should have proceeded. The appeal will be allowed. The conviction and sentence set aside and the matter remitted to the Mount Gambier Magistrates Court for hearing afresh by another magistrate.

CaseChat Overview and Summary

The case of Shaw v Police involved a dispute over the facts of an incident where the appellant, Shaw, had pleaded guilty to smashing the windscreen of a car in a carpark at night. The driver of the car, a young woman, claimed that Shaw had followed her to the car before the attack, while Shaw argued that he did not follow her and only thought he recognised the car as belonging to someone who owed him money. The special magistrate had accepted the woman's account and sentenced Shaw to four months in prison, stating that suspension was not an option due to the seriousness of the circumstances. Shaw's solicitor argued that the magistrate should have cleared up the discrepancy in the accounts of the incident instead of accepting the prosecution's version, which may have influenced the decision against suspension.

The legal issue before the court was whether the magistrate had erred in not clearing up the discrepancy in the accounts of the incident before proceeding with sentencing. The court considered whether the magistrate should have set the matter down for a disputed facts hearing, given that the solicitor for the appellant had raised the issue of the discrepancy. The court concluded that the magistrate should not have proceeded with sentencing without first resolving the discrepancy in the accounts of the incident.

The court allowed the appeal, set aside the conviction and sentence, and remitted the matter to the Mount Gambier Magistrates Court for hearing afresh by another magistrate. The court held that the magistrate should have cleared up the discrepancy before proceeding with sentencing and that the failure to do so was an error that warranted setting aside the conviction and sentence. The matter was to be heard afresh by another magistrate to ensure that the issue of the discrepancy was properly resolved before any sentencing decision was made.

The final orders of the court were that the appeal be allowed, the conviction and sentence set aside, and the matter remitted to the Mount Gambier Magistrates Court for hearing afresh by another magistrate. The court emphasised the importance of resolving any discrepancies in the accounts of the incident before proceeding with sentencing to ensure that the decision is based on accurate and complete information.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established