Wright v Police - [2008] SASC 216

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WRIGHT v POLICE
[2008] SASC 216
Judgment of The Honourable Justice Anderson
7 August 2008
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - ASSAULT OCCASIONING ACTUAL BODILY HARM
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DOUBLE JEOPARDY
Appeal against conviction - appellant convicted of aggravated assault - appellant also convicted of carrying an offensive weapon - inconsistencies between the prosecution witnesses - whether magistrate erred in finding first count proved beyond reasonable doubt - second charge laid under the wrong section - respondent applied to amend complaint - applicant applied to amend grounds of appeal - whether amendment to the complaint should be allowed - whether second count relates to conduct that is subsumed within the first count - whether double jeopardy.
Held: Although inconsistencies between prosecution witnesses, these were not so significant that magistrate erred in his findings - magistrate had the benefit of seeing and hearing the witnesses - appeal against conviction for first count dismissed - amendment to complaint of second count disallowed - first count covers the same conduct - amendment would amount to double jeopardy - amendment to grounds of appeal allowed - appeal against conviction for second count allowed - penalty upheld.
Criminal Law Consolidation Act 1935 (SA) s 20(1)(b), s 20(3) and s 5AA; Summary Offences Act 1953 (SA) s 15(1)(a) and s 15(1)(ba)(a) and s 15(1bc); Summary Procedure Act 1921 (SA) s 181, referred to.
Robey v SA Police (1993) 18 MVR 121; Ireland v Police [2005] SASC 202; O'Hair v Killian (1971) 1 SASR 1; R v Maggs (2008) 100 SASR 303; DAT v Police [2002] SASC 219; Environment Protection Authority v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502, discussed.

WRIGHT v POLICE
[2008] SASC 216
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

This is an appeal by Mr Wright following a trial before a magistrate in which the appellant was convicted of two counts as follows:
1.Intentionally made physical contact directly with Alicia Frances Lennox; knowing that (she) might reasonably object to the contact in the circumstances; contrary to s 20(1)(b) and s 20(3) of the Criminal Law Consolidation Act; and
2.Without lawful excuse at night carried an offensive weapon, namely, a camping shovel; contrary to s 15(1)(ba)(a) of the Summary Offences Act.
The relevant events occurred late on 24 December 2006 and into the following day near Coonalpyn in the South-East of South Australia. The magistrate convicted the appellant on both counts. Defence counsel had argued that counts 1 and 2 raised a double jeopardy situation but the magistrate held that the charges were of a different character and relied on different elements to prove each. He specifically said at [32] “there is no duplicity”. As I will later find,…

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 Wright v Police

Details

AGLC: Wright v Police [2008] SASC 216
Case: [2008] SASC 216
Decision Date: 7 August 2008

CaseChat Overview and Summary

The appeal before the court was brought by the appellant against his conviction in the Magistrates Court of South Australia for two counts. The first count was an aggravated assault, and the second count involved carrying an offensive weapon. The respondent applied to amend the complaint related to the second count, and the appellant applied to amend the grounds of appeal. The issues before the court were whether the magistrate erred in finding the first count proved beyond reasonable doubt, whether the second charge was laid under the wrong section, and whether double jeopardy would result if the amendment to the complaint was allowed.

The court found that although there were inconsistencies between the prosecution witnesses, these were not significant enough to result in the magistrate erring in his findings. The court held that the magistrate had the benefit of seeing and hearing the witnesses and was best placed to determine their credibility. Therefore, the appeal against the conviction for the first count was dismissed. The court also rejected the Crown’s application to amend the complaint of the second count, finding that the first count covered the same conduct as the second count. The court held that allowing the amendment would amount to double jeopardy.

The court allowed the applicant’s amendment to the grounds of appeal and allowed the appeal against the conviction for the second count. The penalty imposed by the magistrate was upheld. The appellant argued that the order of the magistrate that he pay the costs of the prosecution and the transport costs of the witnesses be quashed. However, the court found that those witnesses were an important part of the prosecution case and saw no reason to interfere with the magistrate’s decision to make the order.

In conclusion, the court dismissed the appeal against the conviction for the first count, rejected the Crown’s application to amend the complaint of the second count, allowed the applicant’s amendment to the grounds of appeal and allowed the appeal against the conviction for the second count, and upheld the penalty imposed by the magistrate. The court also found no reason to interfere with the magistrate’s decision to make the order that the appellant pay the costs of the prosecution and the transport costs of the witnesses.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J

The appellant also argued that the order of the magistrate that he pay the costs of the prosecution and the transport costs of the witnesses Mr Brown and Ms Barwick be quashed. Those witnesses were an important part of the prosecution case and I can see no reason to interfere with the magistrate’s decision to make the order.Conclusion To summarise:1.I dismiss the applicant’s appeal against conviction for count 1.2.I reject the Crown’s application to amend count 2.3.I allow the applicant’s amendment to the grounds of appeal and would allow the appeal against conviction for count 2.4.I uphold the penalty imposed by the magistrate.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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