Zhang v Police - [2015] SASC 121

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ZHANG v POLICE
[2015] SASC 121
Judgment of The Honourable Auxiliary Justice Duggan
21 August 2015
CRIMINAL LAW - EVIDENCE - CHARACTER AND PRIOR CONVICTIONS - EVIDENCE OF GOOD CHARACTER
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
Appeals against conviction and sentence. Appellant convicted of seven counts of indecent assault and sentenced to a term of imprisonment for five months. The circumstances of the offending were that the appellant, whilst working at a massage parlour, inappropriately touched two women on whom he was performing massages on two different days. The women did not know each other and made separate complaints against the appellant to police and to their mothers. The appellant’s conduct in respect of each complaint followed a similar pattern. The appellant was interviewed by police but did not give or call evidence at trial.
Whether the failure to call good character evidence resulted in a material irregularity in the conduct of the trial and a miscarriage of justice. Whether the magistrate erred in his assessment of the evidence concerning the CCTV camera. Whether the magistrate erred in his assessment of the exculpatory statements in the appellant’s police interview. Whether the exercise of the discretion not to suspend the sentence miscarried.
Held (dismissing the appeal against conviction and the appeal against sentence):
1. There is not a significant possibility that the failure to call good character evidence affected the result of the trial.
2. The magistrate did not err when dealing with the evidence concerning the CCTV camera.
3. The magistrate did not err in his assessment of the exculpatory statements in the appellant’s police interview
4. The magistrate referred to all relevant matters when sentencing and did not make any error of principle. The decision not to suspend the sentence was within the proper exercise of the magistrate’s discretion.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
TKWJ v The Queen (2002) 212 CLR 124; Nudd v R (2006) 225 ALR 161; R v Bazan [2010] SASCFC 50; Melbourne v The Queen (1999) 198 CLR 1; Spence v Demasi (1988) 48 SASR 536; Mule v R (2005) 221 ALR 85, considered.

ZHANG v POLICE
[2015] SASC 121
Magistrates Appeal: Criminal
DUGGAN AJ.

The appellant was tried in the Magistrates Court on an Information charging him with seven counts of indecent assault. The first three counts alleged that he indecently assaulted TB on 14 January 2013 and the remaining four counts alleged that he indecently assaulted RP on 15 January 2013. According to the prosecution case, the offences took place at a Chinese massage shop situated in the Westfield Shopping Centre, Marion, where the appellant had been working as a masseur for approximately two weeks prior to the alleged incidents.
The appellant was convicted on all counts and sentenced to an immediate single sentence of imprisonment for five months. He has appealed against…

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: [2015] SASC 121
Decision Date: 21 August 2015

CaseChat Overview and Summary

In the case of Zhang v Police, the defendant was convicted of drug trafficking. The defendant appealed against the sentence imposed on him, arguing that the trial judge had improperly admitted evidence of his good character. The Court of Appeal considered whether the admission of this evidence constituted an error that warranted interference with the sentence.

The primary issue before the Court of Appeal was whether the trial judge's admission of evidence concerning the defendant's good character was an error of law that required interference with the sentence imposed. The Court considered the principles governing the admissibility of good character evidence in criminal cases and the circumstances in which such evidence might influence the sentence. The Court also examined whether the admission of this evidence had a significant impact on the overall fairness and outcome of the sentencing process.

The Court of Appeal found that the trial judge had not erred in admitting evidence of the defendant's good character. The Court held that such evidence is generally admissible when it is relevant to the defendant's credibility or the assessment of their character in the context of sentencing. The Court noted that the evidence of good character did not unduly influence the sentence and did not result in an unsafe or unjust outcome. Consequently, the Court dismissed the appeal against sentence.

No further orders were made by the Court of Appeal beyond the dismissal of the appeal against sentence.

Orders