Spurway v Police

Case [2011] SASC 177

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

SPURWAY v POLICE

[2011] SASC 177

Judgment of The Honourable Justice Blue

14 October 2011

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL

CRIMINAL LAW - EVIDENCE - RES GESTAE

CRIMINAL LAW - EVIDENCE - COMPLAINTS

PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - POWERS AND DUTIES IN RESPECT OF UNREPRESENTED LITIGANTS

Appellant found guilty of assault causing harm – accused self-represented at trial – whether extension of time to appeal should be granted – whether exceptional circumstances justify delay – whether a miscarriage of justice if extension not granted – whether Magistrate erred in admitting and using evidence of prior statements by complainant – whether Magistrate placed undue pressure on appellant to conclude his cross-examination

Held: appeal allowed, conviction set aside and matter remitted to the Magistrates Court for a new trial: (1) the appellant did not demonstrate exceptional circumstances to justify the lengthy delay; however there would otherwise be a miscarriage of justice if an extension were not granted (2) the Magistrate erred in admitting and using the evidence of prior statements as they do not fall within the doctrines of res gestae or proximate complaint (3) the Magistrate erred in placing undue pressure on the self-represented accused to conclude his cross examination.

Criminal Law Consolidation Act 1935 (SA) s 20(4); Supreme Court Civil Rules 2006 (SA) r 281, r 295(1)(a), referred to.
Ratten v The Queen [1972] AC 378; Kilby v The Queen (1973) 129 CLR 460; MacPherson v The Queen (1981) 147 CLR 512; Walton v The Queen (1989) 166 CLR 283; M v The Queen (1994) 181 CLR 487; Suresh v The Queen (1998) 72 ALJR 769, applied.
R v Hart [2004] SASC 363, distinguished.
Cooling v Steel (1971) 2 SASR 249; Gikas v Police (1999) 202 LSJS 301; Jackamarra v Krakouer (1998) 195 CLR 516; Papakosmas v The Queen (1999) 196 CLR 297; Police v Warren [2000] SASC 285; R v Armstrong (1983) 35 SASR 356; R v Balchin (1974) 9 SASR 64; R v Brown [1963] SASR 190; R v Foster (1996) 187 LSJS 135; R v Hatfield [1971] Crim LR 700; R v Marsh (1935) 25 Cr App R 49; R v Rostom (2007) 98 SASR 528; R v Trotter (1979) 22 SASR 64, considered.

SPURWAY v POLICE
[2011] SASC 177

Magistrates Appeal:  Criminal

  1. BLUE J:   The appellant Mr Spurway was charged by the Police with assaulting the complainant and thereby causing her harm.[1]

    [1]    Criminal Law Consolidation Act 1935 (SA) s 20(4).

  2. Mr Spurway was self-represented at trial. Each of the complainant and Mr Spurway gave evidence. The case turned upon the Magistrate’s assessment of the evidence of the complainant and Mr Spurway.

  3. The Magistrate found Mr Spurway guilty and convicted him of the offence.

  4. Mr Spurway seeks to appeal from that conviction and seeks an…

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Spurway v Police [2011] SASC 177
Case
[2011] SASC 177
Decision Date

CaseChat Overview and Summary

The appellant, Mr Spurway, has appealed against his conviction for assault causing harm, seeking both an extension of time to appeal and a new trial. The appeal was heard in the South Australian Supreme Court. The primary legal issues revolved around whether exceptional circumstances justified the delay in filing the appeal, whether the absence of an extension would result in a miscarriage of justice, and whether the magistrate erred in admitting and using evidence of prior statements made by the complainant, as well as whether undue pressure was placed on Mr Spurway during cross-examination.

The court found that the magistrate had erred in admitting and using evidence of prior statements made by the complainant to the police and medical officers, including the content of the 131 444 call. The court held that while it was permissible to consider the distress exhibited by the complainant, it was not permissible to consider the content of what was said by her. The magistrate had explicit regard to the content of the complainant's statement as recorded on the police tape, which formed a major component of his overall analysis. The court also found that the magistrate did not advise Mr Spurway of his right to object to the tender of evidence on admissibility grounds or otherwise, which was a duty owed to an unrepresented defendant.

The court granted the extension of time for the appeal, considering the emotional distress and shock Mr Spurway experienced, his lack of legal representation, and the significant delay in filing the appeal. The court concluded that the exceptional circumstances, including Mr Spurway's emotional state and the magistrate's error in admitting certain evidence, warranted the extension. The appeal was allowed, and the conviction was quashed.

The final orders included allowing the appeal, quashing the conviction, and remitting the matter to the Magistrates Court for a new trial.

Orders

Orders of the court

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Background

Background to the litigation

Mr Spurway seeks to appeal from that conviction and seeks an extension of time within which to do so.Facts In 2006, Mr Spurway and the complainant commenced a relationship. The complainant lived in a house with her three children in the city while Mr Spurway lived in a unit on Greenhill Road. In April 2008, an incident occurred between them at Mr Spurway’s unit. Mr Spurway asked the complainant to leave and never to return. However, after that incident, the parties resumed seeing each other. On the morning of 27 May 2008 (“the morning”), the complainant telephoned Mr Spurway and then arrived at his unit with two take-away coffees. They had a conversation, the content of which was in dispute. After this, on the complainant’s account, the following occurred.1.While they were both in the bedroom, Mr Spurway pushed her to the ground.2.Mr Spurway:(a) kicked her a number of times, including one kick to the right‑hand side of the back of her neck;(b) picked her up and threw her onto the bed;(c) put his knee on her spine and twisted her right arm behind her back;(d) smashed her head against the wall and bed frame.3.He then walked away into the kitchen and there was a further conversation between them.4.The complainant and Mr Spurway walked towards each other and she pushed him in the chest.5.He punched the complainant twice; one punch was blocked by her by her hand and the other connected with her chin. Mr Spurway’s account of what occurred was as follows.1.The complainant swung a number of punches at him, three of which connected with his face.2.He put his arms around her to restrain her.3.She struggled and both parties slipped on the carpet and fell onto the bed.4.The complainant struggled, kicked and bit him.5.Mr Spurway released her. He walked away into the kitchen.6.She pushed him aside and left. On both accounts, the complainant then proceeded downstairs and out onto Greenhill Road. Mr Spurway went onto the balcony of the unit and called something down to her. On Greenhill Road, the complainant called the police number 131 444 and spoke to the operator. A police officer and an ambulance officer attended at Greenhill Road, and spoke to the complainant. The complainant was conveyed to a hospital, where she was treated by a doctor and seen by two other police officers.Application for extension of time Pursuant to r 281 of the Supreme Court Civil Rules 2006 (SA), the time to appeal from a judgment of the Magistrates Court is 21 days. The time to appeal expired on 10 June 2010. Mr Spurway did not file the notice of appeal until almost 12 months later on 2 June 2011. He applied for an extension of time within which to appeal pursuant to r 295(1)(a). I determined to hear argument on the application and on the appeal concurrently. Mr Spurway’s application was supported by an affidavit on which he was cross-examined. The effect of Mr Spurway’s evidence is as follows.1.He was very shocked by the guilty verdict, felt depressed and humiliated, and withdrew from his friends and society and largely stayed home by himself.2.Within the time limit, he spoke casually to a solicitor about the importance of the time limit within which to appeal. The solicitor said that although there was a time limit the court had power to extend it, and he was currently doing an appeal in a matter in which the verdict had been delivered two years before.3.Mr Spurway wanted to appeal, but put off thinking about it and could not face doing it.4.Mr Spurway was particularly embarrassed because he had been a police officer before his retirement. He felt he now wore a stigma of a perpetrator of domestic violence.5.In May 2011, Mr Spurway was served with a notice of a claim by the complainant for victims of crime compensation, which included a medical report from her treating doctor.6.Mr Spurway’s resentment at the verdict, prompted by the notice of claim and medical report and coupled with the stigma he felt, finally prompted him to consult a solicitor and thence to apply for an extension of time within which to appeal.

Evidence

Evidence Before The Court

Essentially, Mr Spurway’s principal contentions on appeal are:1.the Magistrate erred in admitting and using evidence of prior statements by the complainant to the police and medical officers (including the 131 444 call);2.the Magistrate erred in failing to advise Mr Spurway of his right to object to the admissibility or use of such evidence of statements by the complainant to the police and medical officers;3.the Magistrate placed inappropriate and undue pressure on Mr Spurway to conclude his cross-examination on day one of the trial;4.the Magistrate erred in his assessment of inconsistencies and unsatisfactory aspects of the evidence of the principal witnesses, being the complainant and Mr Spurway;5.the Magistrate erred in concluding that the low level of injuries sustained by the complainant were consistent with her account;6.the Magistrate failed to identify to Mr Spurway issues to cover in his closing address.Evidence of Prior Statements by the Complainant The Police called evidence from the responding police and ambulance officers who attended at Greenhill Road, the doctor who treated the complainant at the hospital and two police officers who attended on her there. Each of the five witnesses gave evidence of the complainant’s apparent emotional state including, initially, fright, and throughout distress. In addition, the Police led evidence of the witnesses’ discussions with the complainant as follows.1.The responding police officer said that the complainant gave him information on who had brought her to the state she was in.2.The responding ambulance officer said that she told him that she had gone to Mr Spurway’s unit for coffee and he had assaulted her.3.Both police officers attending at and the doctor at the hospital said that the complainant told them that she had been assaulted. The Police also tendered both the audio recording and a transcript of the telephone call between the complainant and the 131 444 operator. As to the evidence of statements made by the complainant to the police and medical officers, the Magistrate received the evidence without comment. As to the evidence of the content of the 131 444 call, Mr Spurway initially objected on the basis of late disclosure and lack of proof of provenance. After provenance was proved, the Magistrate admitted the recording and the transcript without comment about their relevance, admissibility or use. During the closing address, the prosecutor made submissions by reference to proximate complaint by the complainant, and submitted that the complaints were consistent with her evidence of what had occurred at Mr Spurway’s unit. The Magistrate had regard to the content of what the complainant said during the 131 444 telephone call. He expressed himself as follows:I have had regard to the emergency call in assessing [the complainant’s] credibility as a witness. The terms of that call are consistent with her evidence of the incident. Her description of the assault during the call is largely in keeping with the evidence that she gave although there are some differences.Admissibility and use of 131 444 call

Decision

Reasons for decision

Counsel for Mr Spurway did not contend that evidence of distress exhibited (as opposed to statements made) by the complainant was inadmissible.Conclusion While Mr Spurway does not contend that the Magistrate erred in having regard to distress evidenced by the police tape, it was not permissible to have regard to the content of what was said by the complainant. The same applies to the evidence of the police and medical officers as to statements made by the complainant to them. The Magistrate had explicit regard to the content of the complainant’s statement as recorded on the police tape, and indeed, given his assessment of the factors identified at paragraph [27] above, his assessment of the credit of the complainant by reference to the tape necessarily formed a major component of his overall analysis. The Magistrate did not refer in his reasons to the content of the statements made by the complainant to the police and medical officers (as opposed to distress exhibited by her), although he had received that evidence. It is impossible to assess the effect of that evidence upon his conclusion. It follows that the Magistrate erred in admitting evidence of the content of prior statements by the complainant, and in using them (at least in respect of the 131 444 call) to assess her credit.Advice concerning right to object A trial judge has a duty to ensure that an unrepresented defendant is apprised of his or her rights and to provide such assistance in the conduct of his or her defence as is appropriate to the particular circumstances.[19] In particular, a judge presiding at a criminal trial must exclude evidence tendered against the accused which is not shown to be admissible.[20][19] Cooling v Steel (1971) 2 SASR 249 at 251-252 per Wells J; MacPherson v The Queen (1981) 147 CLR 512 at 523-525 per Gibbs CJ and Wilson J, 534-535 per Mason J, 537 per Aickin J, 545-547 per Brennan J; R v Rostom [2007] SASC 210; (2007) 98 SASR 528 at [35], [43] per Gray and Sulan JJ.[20] MacPherson v The Queen (1981) 147 CLR 512 at 523 per Gibbs CJ and Wilson J. Towards the beginning of the trial, the Magistrate advised Mr Spurway as to the course of the trial, but did not provide any advice about his right to object to the tender of evidence on admissibility grounds or otherwise. When the prosecutor tendered the audio disk through one of the constables who attended at the hospital, Mr Spurway objected on the ground that the constable had no involvement in the recording of the tape. Subsequently, the Police called the technical support officer who had recorded the tape and re-tendered the tape and the transcript of it. Mr Spurway did not object at that point. Given that Mr Spurway had not been advised about his right to object, the fact that real and important issues arose as to the admissibility and use of the tape and transcript and the fact that Mr Spurway was unlikely to be familiar with the doctrines of res gestae and proximate complaint, the Magistrate ought to have identified the issues of admissibility and use which arose at the time of tender, and advised Mr Spurway of his right to object in relation thereto. This ground of appeal is interrelated with the ground of appeal as to the substantive admissibility and use of the audio tape and transcript.

Ratio Decidendi

Legal Principle Established

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