Stone v Police

[2019] SASCFC 10

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

STONE v POLICE

[2019] SASCFC 10

Reasons for Decision of The Full Court

(The Honourable Justice Vanstone, The Honourable Justice Parker and The Honourable Justice Lovell)

4 February 2019

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL

Application for permission to appeal against a decision of a single Judge of the Supreme Court in which the applicant's appeal against conviction, following a trial in the Magistrates Court, was dismissed.

Held per Vanstone J (Parker and Lovell JJ agreeing), dismissing the application:

1.  The applicant has not demonstrated that the grounds are reasonably arguable and that a question of principle or importance arises.

2.  Permission to appeal is refused.

Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 7; Evidence Act 1929 (SA) s 34P, referred to.
Roach v The Queen (2011) 242 CLR 610, applied.

STONE v POLICE
[2019] SASCFC 10

Full Court:      Vanstone, Parker and Lovell JJ

1. VANSTONE J:     After a trial in the Magistrates Court, Brenton Graham Stone was convicted for two counts of contravening an intervention order.  His appeal against those convictions was heard in this Court in September 2018.  It was dismissed.  In addition, the single Judge refused permission to appeal.

2. The applicant now renews his application for permission to appeal against the convictions.

   Background

3. The intervention order which was found to have been breached was made on 5 September 2012 pursuant to s 7 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).

4. The applicant and the protected person are next door neighbours in Oaklands Park.  There is a long history of difficulties between them.  That led to the protected person seeking an intervention order, the terms of which were quite specific.

5. The first count was an allegation that the applicant had started his vehicle at 5.40 am on 10 November 2016.  The second count comprised an allegation that at about 6:00 am on 2 December 2016, when the protected person was returning from an early morning walk, the applicant spoke to him, saying, “Yes, it’s 6 o’clock”.  Count 3 was withdrawn before trial.  The applicant was acquitted of Count 4 at trial on the basis that, although the relevant conduct was proved, the Magistrate was not satisfied that the offence was made out.

6. The applicant was not represented by counsel before Kelly J and his grounds of appeal from her Honour’s decision are handwritten and, plainly, drafted by him.  There are 50 grounds in number, but they can be grouped together, as many of them are aspects of the same complaint.  I summarise them as follows.

7. Grounds 1 to 7 are assertions relating to the applicant’s earlier trial and appeal on separate charges, which occurred in 2015 and led to a quashing of convictions by Sulan J.  Kelly J referred to this authority and distinguished it.  The applicant complains of inaccuracies in the Judge’s treatment of that authority.

8. Grounds 8 to 28 relate to the evidence of discreditable conduct led at the applicant’s trial.  In grounds 8 to 11 the applicant argues that this evidence amounted to propensity evidence and was not relevant at his trial.  He complains of the Judge’s approval of the Magistrate’s approach to this evidence, which was to confirm that its relevance was confined to general background.  Grounds 12 to 17 complain of the Judge’s reliance on the High Court authority Roach v The Queen (2011) 242 CLR 610, and her Honour’s distinguishing of the earlier judgment by Sulan J. Grounds 18 to 22 and 49 allege that there was “possibly” malice in the police prosecutor’s failure to give notice of the intention to lead discreditable conduct evidence. Grounds 23 to 28 claim that the thrust of the evidence of discreditable conduct was comparable to that led in the 2015 prosecution, that therefore the same principles applied and that the evidence was not relevant.

9. Grounds 29 to 35 complain of the approach taken by both the Judge and the Magistrate to the evaluation of the competing evidence of the protected person and the applicant.  The case was described in the grounds as an “oath against oath” case.  As a result of the impugned approach, the verdicts are said to be unsafe and unsatisfactory.

10. Grounds 36 to 38 complain of a failure to find that the trial prosecutor’s cross-examination of the applicant was improper.

11. Grounds 39 to 44 raise very specific factual matters arising from the evidence of the protected person, as against that of the applicant, and a failure by the Judge to sufficiently examine those matters.

12. Ground 45 contains only a request for an order.

13. Ground 46 gathers together the earlier complaints and asserts that they demonstrate a miscarriage of justice.

14. Grounds 47 to 48 discuss the importance of the relevant standard of proof.

15. Ground 49 repeats a suggestion that the police prosecutor deliberately disregarded the rules regulating the introduction of discreditable conduct evidence.

16. Ground 50 relates to Count 4, of which the applicant was acquitted.  It is a complaint that the Magistrate should have dismissed that count as soon as he realised that the charged conduct did not amount to an offence.

    Consideration

17. I have read the judgments of Kelly J and Magistrate Foley. Against those judgments I have considered the grounds of appeal. Almost all of the grounds amount to a renewal of the same arguments put to Justice Kelly, and in most instances to the Magistrate. The principal argument of the applicant is concerned with the issue of evidence of discreditable conduct which was led at the trial and treated by the Magistrate as going only to the background and context within which the charged incidents occurred. Kelly J dealt with this topic at some length. I agree with her Honour’s analysis. The evidence was plainly admissible for the purpose found by the Magistrate. It is noteworthy that no objection was taken to this evidence at the time it was presented. When objection was taken after the close of evidence the Magistrate dealt with the matter sensibly and in accordance with principle. Although, at that point, the Magistrate did not specifically refer to the criteria in s 34P of the Evidence Act 1929 (SA), he correctly directed himself. In my respectful opinion, Kelly J’s conclusion that the High Court authority of Roach was apposite and that the earlier decision by Sulan J concerning the applicant was distinguishable is correct.  In the applicant’s earlier case the evidence extended to criminal behaviour, and it was the subject of objection when presented.

18. The grounds numbered 29 to 35, which complain of the analysis of evidence in the context of this case being the evidence of one witness against another, are unarguable.

19. I agree with the analysis of Kelly J in relation to the prosecutor’s cross-examination of the applicant.  It will be remembered that during the trial the applicant was represented by counsel.

20. The suggestion that the prosecutor at trial deliberately disregarded the rules pertaining to discreditable conduct evidence and “possibly” demonstrated malice is a new one.  In any event there is no basis for it.

21. The suggestion that the Magistrate should have dismissed Count 4 ahead of delivering his reasons is novel.  I agree with the treatment of this topic by Justice Kelly. 

22. The balance of the grounds are not fit for consideration by the Full Court.

23. In order to secure a grant of permission to appeal the applicant has to demonstrate, at least, that the grounds are reasonably arguable and that a question of principle or importance arises.  In my opinion the applicant has failed to answer those criteria.

    Conclusion

24. I would dismiss the application for permission to appeal.

25. PARKER J:          I agree that leave should be refused for the reasons stated by Vanstone J.

26. LOVELL J:          I agree the application for permission to appeal should be dismissed.