Stusser v Police - [2013] SASC 73

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
STUSSER v POLICE
[2013] SASC 73
Reasons for Rulings of The Honourable Justice Gray
23 May 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - CONVICTION ON EX PARTE HEARING
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - COSTS
Appeal against conviction - where defendant charged on Information with two counts of aggravated assault contrary to section 20(3) of the Criminal Law Consolidation Act 1935 (SA) - where defendant did not attend trial - where defendant was found guilty by a Magistrate of both counts following an ex parte hearing - whether the Magistrate determined to proceed ex parte without sufficient caution - whether the defendant had deliberately and consciously absented himself from the Court.
Held: Appeal allowed - respondent conceded the appeal should be allowed - findings of guilt recorded by the Magistrate set aside - matter remitted for retrial in the Magistrates Court by a different magistrate - defendant to pay the costs thrown away in the Magistrates Court and of the appeal - terms of the defendant’s bail agreement amended to require the provision of a cash surety.
Criminal Law Consolidation Act 1935 (SA) s 20(3), referred to.
R v Gee (2012) 113 SASR 372; R v Hayward [2001] 1 QB 862, considered.

STUSSER v POLICE
[2013] SASC 73
Magistrates Appeal: Criminal
GRAY J.

This is an appeal against conviction.
On 23 April 2013, I made an order allowing the appeal of the defendant and appellant, Shaen Justin Stusser, and setting aside the findings of guilt recorded by the Magistrate, and remitted the proceeding for retrial. I made further orders that the defendant pay the costs thrown away in the Magistrates Court and the costs of the appeal. Finally, I amended the terms of the defendant’s bail agreement to require the provision of a cash surety. My reasons for making these orders follow.
On 28 July 2011, the defendant was charged on Information with two counts of aggravated assault contrary to section 20(3) of the Criminal Law Consolidation Act 1935 (SA). The defendant faced a maximum penalty on each count of three years imprisonment. On 14 December 2012, the defendant was found guilty of both counts by a Magistrate. This followed an ex parte hearing of both counts.
The alleged offending occurred on 9 and 13 June 2009. Count one alleged an assault on 9 June 2009 by the defendant of his 33 week pregnant partner. Count two alleged an assault on 13 June 2009 of the defendant’s partner when she was three days post-partum.
The court file records that the defendant was present at the Elizabeth Magistrates Court for a pre-trial conference on 20 September 2012. At that conference, the matter was listed for trial on 14 December 2012.
The defendant did not attend on 14 December 2012. His solicitor was, however, present. After a brief adjournment the defendant still had not…

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.

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Details

Case: [2013] SASC 73
Decision Date: 23 May 2013

CaseChat Overview and Summary

In the matter of Stusser v Police, the Supreme Court of South Australia addressed an appeal against the defendant's conviction in the Magistrates Court. The defendant was charged with two counts of aggravated assault contrary to section 20(3) of the Criminal Law Consolidation Act 1935 (SA) and did not attend the trial. Following an ex parte hearing, the Magistrate found the defendant guilty on both counts. The appeal centred on the procedural fairness of the ex parte hearing and the defendant's absence from the trial. The court was required to determine whether the Magistrate had exercised sufficient caution before proceeding without the defendant's presence and whether the defendant had deliberately absented himself from the proceedings.

The court examined the legal requirements for proceeding ex parte in the absence of the defendant and assessed whether the Magistrate had adequately considered the circumstances surrounding the defendant's absence. The court noted that the defendant had a history of non-attendance in court and had been warned about the consequences of further absences. The court concluded that the Magistrate had not sufficiently cautioned the defendant about the potential consequences of not attending the trial, thereby potentially infringing on the defendant's right to a fair trial.

The Supreme Court found that the defendant's absence was not deliberate and conscious, and the Magistrate had not provided adequate warnings about the consequences of non-attendance. Consequently, the appeal was allowed, and the findings of guilt were set aside. The matter was remitted to the Magistrates Court for a retrial by a different magistrate. The court also ordered that the defendant would bear the costs incurred in the Magistrates Court and during the appeal. Additionally, the terms of the defendant's bail agreement were amended to require the provision of a cash surety.

Orders

Orders of the court

Held: Appeal allowed - respondent conceded the appeal should be allowed - findings of guilt recorded by the Magistrate set aside - matter remitted for retrial in the Magistrates Court by a different magistrate - defendant to pay the costs thrown away in the Magistrates Court and of the appeal - terms of the defendant’s bail agreement amended to require the provision of a cash surety.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

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Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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