Stewart v The King - [2023] SASCA 126

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
STEWART v THE KING
[2023] SASCA 126
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice David and the Honourable Justice Kimber)
23 November 2023
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - EVIDENCE - BURDEN AND STANDARD OF PROOF
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - ROLE OF GUILTY PLEA OR DEPOSITIONS
After the commencement of his trial, the appellant pleaded guilty to the offence of Aggravated Recklessly Causing Harm contrary to s 24 of the Criminal Law Consolidation Act, 1935 (SA). On at least two occasions, the appellant struck the victim with his fists. The victim was particularly vulnerable. Earlier the same day, the victim had been abducted and assaulted by others. The earlier assault involved the victim being struck to the face more than once before being placed in the boot of a vehicle and then being taken to the appellant. The appellant then struck the victim while she was still in the boot of the car. The next day the victim went to hospital. She had fractures to her face.
In sentencing the appellant to a head sentence of three years and one month with a non-parole period of one year and seven months, the sentencing Judge found that the appellant had caused the fractures to the face of the victim. In making that finding, the sentencing Judge relied upon evidence given by the victim in the trial of other offenders and after the appellant had pleaded guilty.
On appeal, the appellant contended that it was not open for the sentencing Judge to rely on evidence given in his absence after he had pleaded guilty and that the sentencing Judged erred in not conducting a disputed facts hearing. The appellant also contended that the finding that he had caused the fractures to the face of the victim was not open.
Held by the Court:
1. Pursuant to s 12 of the Sentencing Act 2017 (SA), the sentencing Judge was able to rely upon the evidence given in the absence of the appellant and did not fall into error in doing so.
2.      The sentencing Judge did not fall into error in not holding a disputed facts hearing. It was not      for the sentencing Judge to hold such a hearing in the absence of an application by counsel.         No such application was made.
3.      Given the earlier assault of the victim, it was not open to the sentencing Judge to find beyond       a reasonable doubt that the fractures to the face of the victim had been caused during the      offence committed by the appellant.
4.      The appeal is allowed.
5.      The appellant is re-sentenced to a head sentence of two years, seven months with a non-parole     period of 16 months.
Criminal Law Consolidation Act 1935 (SA) ss 24, 158; Sentencing Act 2017 (SA) ss 12, 40, 71, 96, referred to.
R v Fresiello

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 Stewart v The King

Details

AGLC: Stewart v The King [2023] SASCA 126
Case: [2023] SASCA 126
Decision Date: 23 November 2023

CaseChat Overview and Summary

The appeal concerned Stewart (the appellant) and The King, heard by the Full Court of the Supreme Court of South Australia. The dispute arose from the sentencing of the appellant for an offence, specifically concerning the factual basis upon which the sentencing judge made findings regarding the cause of the victim's fractures.

The legal issues before the court were whether the sentencing judge erred in failing to conduct a disputed facts hearing, and whether the finding that the appellant caused the victim's fractures was established beyond a reasonable doubt. The court also considered whether the agreed facts, which were part of the material before the sentencing judge, assisted the prosecution in meeting its burden of proof.

The Full Court held that the sentencing judge did not err in failing to conduct a disputed facts hearing, as no application for such a hearing was made by the appellant's counsel, and it was not incumbent upon the judge to convene one without such a request. However, the court found that the sentencing judge's conclusion that the appellant caused the fractures was not open to be made beyond a reasonable doubt. This was because the evidence did not exclude the possibility that the fractures were caused during an earlier assault, and the medical evidence, including affidavits from Dr Underwood and Dr Tariq, did not assist the prosecution in establishing the appellant's sole responsibility for the fractures. The court noted that the agreed facts also left open the possibility that the fractures occurred during the first assault.

Consequently, the appeal was allowed on the basis that the finding regarding the cause of the fractures was not supported by the evidence beyond a reasonable doubt. The court did not need to consider the appellant's further complaint about the adequacy of the sentencing judge's reasons for that finding.

Orders

Orders of the court

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Background

Background to the litigation

In an appropriate case, an offender might need to be provided with more than an opportunity to make submissions about evidence given in his absence. In some cases, there may need to be an opportunity to test the evidence, or to lead further evidence, before evidence given in the absence of an offender can be relied upon. This brings us to the second complaint of the appellant, the failure to hold a disputed facts hearing. The failure to hold a disputed facts hearing The appellant submits the sentencing Judge erred in not conducting a disputed facts hearing. We do not agree. The approach of the sentencing Judge to this issue was appropriate. As set out above, the sentencing Judge raised the possibility of a disputed facts hearing with counsel. No application for such a hearing was made. It is not for a Judge to convene a disputed facts hearing without an application from counsel. The obvious inference from the approach of counsel is that he did not wish to pursue such a hearing. When the issue was raised by the sentencing Judge, the effect of the submission of counsel was that he did not believe it would resolve the issue given what had occurred during the first assault. The appellant was entitled to take the position that the burden could not be met. On the issue in question, the onus was on the prosecution. Whether it was open to find the appellant caused the fractures We turn to the real issue in the appeal: whether the finding that the appellant had caused the fractures was open beyond a reasonable doubt as required. The blows delivered by the appellant were forceful and to the head. We do not doubt that such blows might cause fractures. Nonetheless, there had also been the first assault. That assault involved both punches and kicks to the face. Those blows were also forceful. We cannot exclude that those blows might have caused the fractures. The affidavits of Dr Underwood and Dr Tariq did not assist the prosecution in meeting its burden. Pursuant to s 12 of the Sentencing Act, the agreed facts were part of the material before the sentencing Judge and, subject to what has been said earlier, open to be relied upon. Those facts also did not assist the prosecution in meeting its burden and left open that the fractures might have been caused in the first assault. In concluding it was not open to the sentencing Judge to make the finding that she did, we do not overlook the advantage that she had in seeing and hearing the victim give evidence. Part of the evidence of the victim was that the blows delivered by the appellant caused stinging that was ‘really bad’. Given the earlier assault, that was not a matter that had much, if any, weight in favour of the appellant causing the fractures. We cannot exclude that what the victim felt was the result of blows being delivered to a face that was already fractured. The appellant also complains that the sentencing Judge gave inadequate reasons for finding that he caused the fractures. Having concluded the finding was not open, it is not necessary to deal with that complaint. Whether the appeal should be allowed

Evidence

Evidence Before The Court

The appellant then committed the offence the subject of this appeal. While the victim was in the boot, the appellant punched her to the head. The sentencing Judge found that occurred ‘a couple of times’ and that it was forceful. In her evidence at trial, the victim said that she was punched ‘like on top of, on the top of my head and my forehead’. The victim could not say if it was in the middle or on either side of her forehead. The victim said the punches ‘stung’ and that she assumed the stinging was the consequence of her skull being fractured. The medical evidence The victim gave evidence that after the offence committed by the appellant, she found out that where she had been struck was where her skull was fractured. Assuming this was said to the victim by a medical practitioner, it must have been said at the Lyell McEwin Hospital. The victim was admitted to the Lyell McEwin Hospital on the evening of 8 December 2019. A CT scan was performed. The CT scan showed a mildly depressed acute fracture of the right eye socket; mild irregularity of the bone adjacent to the right eye socket possibly indicating a very short skull base fracture; and a fractured nose with multiple displaced bony fragments on both sides of nose. There were affidavits from Dr Underwood and Dr Tariq before the sentencing Judge. Both worked at the Lyell McEwin Hospital. No opinion was expressed in either affidavit as to the cause of the fractures. No medical practitioner was called at the trial of Messrs Barry, Davies and Gardiner but facts were agreed by those three defendants and the prosecution. As he had entered a plea of guilty, the appellant was not a party to the agreed facts. The agreed facts set out the opinion of Dr Underwood as being that the injuries to the victim were ‘consistent with being punched many times to the face and head’; and that Dr Underwood ‘cannot reach a conclusion as to when [the victim’s] skull was fractured but is of the opinion that the fractures to [the victim’s] skull may have been exacerbated by further punches to the face or head’. Submissions before the sentencing Judge as to the fractures After the trial, the sentencing Judge heard submissions on sentence from the then counsel for the appellant, counsel for the other four men and the prosecution. Those submissions were heard on 4 October 2022 and 6 December 2022. During the submissions on 4 October 2022, the sentencing Judge put that the skull fractures had been caused by the appellant. Counsel for the appellant submitted that finding could not be made beyond a reasonable doubt. The sentencing Judge raised the possibility of a disputed facts hearing. The submission of counsel for the respondent was to the effect that due to the first assault, there would be a difficulty in the issue being resolved by such a hearing. The sentencing Judge indicated that having heard the evidence, she did not agree and said she would provide counsel with references to the transcript. Counsel for the appellant said that he would not say anything more ‘at this point’ and would ‘take the opportunity to make submissions on the next occasion’.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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