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 177Magistrates Appeal: Criminal
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).
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.
The Magistrate found Mr Spurway guilty and convicted him of the offence.
Mr Spurway seeks to appeal from that conviction and seeks an…
Continue reading Spurway v Police
Sign in free to access the full text
- AGLC
- Spurway v Police [2011] SASC 177
- Case
- [2011] SASC 177
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.