S, MD v POLICE [2011] SASCFC 30 (14 April 2011)

Last Updated: 15 April 2011

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Youth Court Appeal)

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S, MD v POLICE

[2011] SASCFC 30

Judgment of The Full Court

(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice Anderson)

14 April 2011

CRIMINAL LAW - PARTICULAR OFFENCES - MISCELLANEOUS OFFENCES AND MATTERS - OFFENCES WITH RESPECT TO EXPLOSIVE SUBSTANCES

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS

Appeal against finding of guilt – appellant charged and found guilty by a judge of the Adelaide Youth Court of the offence of manufacturing an explosive at an unauthorised place contrary to s 12(3) of the Explosives Act 1936 (SA) – numerous grounds of appeal submitted on behalf of appellant who was unrepresented – in submissions before the court and in oral application, the respondent raised whether sufficient reasons for decision had been given by the trial judge.

Held: Appeal allowed and finding of guilt and penalty set aside – failure of trial judge to provide adequate reasons for the findings made – findings as to the facts of what occurred were necessary because of the conflicting versions given as to the nature of the appellant’s involvement in the incident – findings as to the credibility or reliability of witnesses were required given important discrepancies between evidence given – no discussion by the trial judge of the legal basis of the appellant’s liability.

Explosives Act 1936 (SA) s 12(3), referred to.

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSLWR 247; R v Keyte [2000] SASC 382; (2000) 78 SASR 68; Papps v Police [2000] SASC 183; (2000) 77 SASR 210; M, EG v Police [2007] SASC 128, considered.

S, MD v POLICE

[2011] SASCFC 30

Full Court: Duggan, Gray and Anderson JJ

DUGGAN J: The appellant was found guilty in the Youth Court of manufacturing an explosive at an unauthorised place contrary to s 12(3) of the Explosives Act 1936 (SA). He now appeals against the finding which was made after a trial before a judge of the Youth Court.
According to the case for the prosecution, the offence took place at the appellant’s secondary school on 23 October 2009. It was alleged at the trial that the appellant and another youth, NB, made a chlorine bomb in a water bottle during recess time on a school day. The bomb did not explode immediately and it was decided to abandon the project. The bomb was thrown into a garbage bin where it exploded, causing a temporary injury to the eyes of a teacher at the school.
The appellant was represented at the hearing before the Youth Court by his father, who also spoke on the appellant’s behalf on the hearing of the appeal. It appears that the appellant’s father prepared the grounds of appeal.
The evidence discloses that NB was the instigator of the idea to make the bomb. He gave evidence at the appellant’s trial and said that on the day of the alleged offence he told the appellant he was going to make a bomb and that the appellant said, “Don’t kill yourself”. NB said that the appellant also told him he did not want to be involved. However, NB added that the appellant came out to watch what occurred on the oval.
The appellant, NB and some other students were on the school oval during that recess. The students who were present were called to give evidence for the prosecution. They gave differing versions as to the extent of the appellant’s involvement.
According to NB, the appellant told him that it would not work because the bottle which NB intended to use had methylated spirits in it. NB said that the appellant then gave him the appellant’s water bottle and the ingredients were placed in it. Nothing happened and, according to NB, the appellant took the bottle, shook it and threw it on the ground.
Another youth, JM, who was also charged over the incident, said he helped NB obtain the chlorine. He said he saw NB on the oval with a bottle in his hands which he later exchanged for another bottle. He said he did not know how NB got the other bottle. He said the appellant told him that he did not want to have anything to do with it.
PC saw NB placing something in the bottle. He said that later NB passed the bottle to the appellant who shook it and then dropped it.
TC said he saw the appellant and NB put something in a bottle. JH gave evidence that he saw NB take a bottle from a bag. He said the appellant took the bottle from NB’s hand and put some other substance in it. He said he saw the appellant shake the bottle and put it on the ground.
MG said he saw the appellant put the bottle in the bin. However, there was conflicting evidence as to this aspect of the matter. SW said he saw NB put the bottle in the bin.
The appellant did not give evidence, but he gave a version of the incident to the police who questioned him. He told the police that, during the recess, NB asked him if he thought chlorine and milk would explode. The appellant replied that it would not. The appellant said he went out on to the oval and heard NB telling the students he was going to mix something in a bottle and it was going to explode. He stated that he gave NB his water bottle. NB then placed something in the bottle. He said NB threw the bottle on the ground and nothing happened. The appellant said he picked it up and squeezed it. He noticed that “it wasn’t pressurised”. He said he then left. He denied placing the bottle in the bin.
The learned Judge summarised the evidence of the witnesses, but made no findings as to credibility or reliability. His conclusions from the evidence were restricted to the following comments:

[109] The Prosecution must, in my opinion, establish beyond reasonable doubt that the defendant participated in the “manufacture” of the explosive and that he knew that he was “manufacturing” an explosive. In my opinion the evidence of the prosecution witnesses [NB], [JM], [PC], [TC], [JH], [MG] and [SW] established beyond reasonable doubt that the defendant participated with the manufacture of the explosives and that he knew he was manufacturing an explosive. The charge has been proved beyond reasonable doubt.

Although the lack of sufficient reasons for decision was not raised as a specific ground of appeal, Mr Kimber SC, for the DPP, quite properly referred to this aspect in his outline of submissions and in the course of oral argument.
Although the trial Judge summarised what the witnesses said in evidence in considerable detail, no findings were made as to the facts of what occurred during the incident on the oval. Such findings were necessary because of the conflicting versions which were given as to the nature of the appellant’s involvement. This problem is highlighted by the fact that the trial Judge stated that he relied upon all of the witnesses who had given evidence of the observations of the incident, when, in fact, there were important discrepancies between what each of them said. Furthermore, there was no discussion as to the legal basis of the appellant’s liability. It is not known whether the appellant was found guilty as a principal offender or by way of his involvement as part of a joint enterprise.
The nature and extent of the duty to give adequate reasons in trials by judge alone or before magistrates is the subject of extensive authority. In Soulemezis v Dudley (Holdings) Pty Ltd, Kirby J said:[1]

This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this Court discharge its functions, if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged. Justice has not been done and it has not been seen to be done.[2]

Footnote added

The failure in this case to expose the process of reasoning which led to the conclusion that the offence with which the appellant was charged was established beyond reasonable doubt renders the finding of guilt unsafe. The appeal should be allowed and the finding of guilt and the penalty set aside.
I should add that, in my view, the grounds of appeal advanced by the appellant’s father on the appellant’s behalf are without merit. Some of the grounds require comment.
It was submitted that the appellant’s interview with the police should not have been admitted into evidence. When the police attended at the school shortly after the incident, it became apparent that they would be required to speak to the appellant. The appellant’s mother told them that the appellant was required to keep an appointment with the dentist. The appellant went to the dentist and then attended at the Sturt police station with his parents where he was interviewed.
It was argued that the appellant was under “de facto arrest” at the school. There is no evidence to support that assertion and no evidence that the interview at the Sturt police station was conducted in such a manner as to call for the exercise of the discretion to exclude it from evidence. The appellant was cautioned before the interview and his father, who is a police officer, was present to safeguard his interests throughout the interview.
Despite submissions made on the appellant’s behalf to the contrary, there is no evidence to support the assertion that the Judge exhibited bias during the hearing or that the police approached the investigation in a biased manner which, in some way, resulted in unfairness to the appellant.
It was further submitted that the appellant was acting under duress by reason of the actions of NB at the time of the alleged offence. Again, there was no evidence before the Court which would give rise to a consideration of the defence of duress.
The only matter which justifies the orders of the Court allowing the appeal and setting aside the finding of guilt and the penalty is the failure to provide adequate reasons for the findings which were made.
GRAY J: I would allow the appeal. I would set aside the finding of guilt and the penalty imposed by Youth Court. I agree with the reasons of Duggan J.
ANDERSON J: I agree with the reasons of Duggan J for allowing this appeal and setting aside the finding of guilt and penalty.

[1] (1987) 10 NSWLR 247 at 259.

[2] See also R v Keyte [2000] SASC 382; (2000) 78 SASR 68; Papps v Police [2000] SASC 183; (2000) 77 SASR 210; M, EG v Police (SA) [2007] SASC 128.

Authorities Cited4

Referred to (4)