Lieschte, Stephen --- "Milera v Korber" [1986] AboriginalLawB 61; (1986) 1(23) Aboriginal Law Bulletin 6

• Milera V Korber
• Reception Of Additional Facts-Reasonable Explanation Not To Mention Them In Court-Defendant Aborigine Represented By Als Solicitor-Limited Opportunity To Take Full Instructions-New Facts Justified Order For Suspension Of Sentence

---

Milera v Korber

Reception of additional facts - reasonable explanation not to mention them in court - defendant Aborigine represented by ALS solicitor - limited opportunity to take full instructions - new facts justified order for suspension of sentence

Milera v Korber

South Australia Supreme Court, Von Doussa, J

5 November 1986

Casenote by Stephen Lieschte

M appealed against a penalty of 3 months imprisonment for assaulting a member of the police force in the execution of his duty.

Police attended the house where M was staying in order to arrest L on drink driving charges. M had been drinking heavily and attempted to intervene in L's arrest. M's assault consisted of 'striking' the officer in the chest with open hands, trying to pull away the officer who had hold of L and of 'struggling violently'. M was also charged with resisting arrest for which he was convicted without penalty.

In court, M was represented by a solicitor, retained by the Aboriginal Legal Rights Movement, who made oral submissions on M's behalf.

On appeal, an argument that the sentence was manifestly excessive was quickly dispatched. However, it was further argued that the sentence should have been suspended. In support of this, the appellant tendered two character references. Two further references were sent directly to Von Doussa J. after he had reserved his decision. The references all spoke highly of the appellant and his dedicated work on Aboriginal alcohol rehabilitation programmes. His Honour noted that, 'If these letters are to be taken into account they provide solid reasons why the sentence of imprisonment should be suspended: it is interesting to note that M's solicitor did make oral reference to M's voluntary work on such rehabilitation programmes as part of her submissions to the sentencing Magistrate.

Objection was raised by the Crown to the admission of the letters on the grounds that the information should have been placed before the Magistrate when opportunity to do so was given. His Honour said that for the additional information to be admitted in his discretion under s 176 of the Justices Act there needed to be a reasonable explanation for the failure to mention them at the proper time. His Honour held that the circumstances in which M instructed his Counsel, M's apparent ignorance of the need to have this information before the court and the fact that none of the parties who have now supplied relevant information live in or near Berri and were not available on the day, did amount to a reasonable explanation.

The above circumstances were contained in an affidavit of M's solicitor, and include the following:

2(a) In respect of the Berri Court of Summary Jurisdiction, I attend the circuit sittings each month.

(b) In nine months, three Aboriginal people have contacted me and given me instructions prior to going to court. There are normally twenty to thirty aboriginal people listed to appear as defendants at each sitting. This includes children who comprise about 20% of the matters I am involved in.

(c) I normally ascertain who my clients will be by looking for Aboriginal surnames when I receive the case list on the Thursday or Friday before the Berri Court circuit commences. I am informed and verily believed to be true that many people have tried to make better arrangements, but Aboriginals at Berri will not attend on a solicitor or field officer before the day of Court.

(d) By arrangement with the Prosecutor, I normally attend on him at about 9 am on the first day of the circuit, which is a Monday, and confirm which listed defendants are Aboriginals. After we have ascertained this, he gives me the allegations which will be made in respect to each Aboriginal defendant in as much detail as practicable in the time available.

(e) Aboriginal defendants begin arriving at the Berri Court from about 10.30 am until lunchtime. As they arrive, I try to get instructions on the allegations. Virtually all Aboriginals expect me to act for them. They usually wish the matter to be finalised on the day and do not want the matter remanded. I do this between court appearances from when the Court commences at 11 am until the Court finishes, which is sometimes as late as 7.45 pm. Virtually all guilty pleas for adults are made on the first appearance in these circumstances. The majority of adult Aboriginal defendants wish to plead guilty.

After receiving the further information, His Honour held that the justice of the case required that the sentence of imprisonment be suspended.