Background
On 18 June 2023, Danielle Geelen attended Mary’s Poppin nightclub in Adelaide. Following an altercation on the dance floor — in which another patron, Ms Blight, threw the contents of her drink at Geelen, apparently believing Geelen had spilled a drink on her — Geelen threw the entire contents of her own drink, including the glass bottle, back at Blight. The bottle struck Blight in the face and fractured her front teeth. Geelen was charged with aggravated assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA), with the aggravating circumstance being the use of an offensive weapon (the glass bottle). She pleaded guilty.
At sentencing in the Magistrates Court, both the prosecution and defence presented an agreed factual basis: that Geelen’s conduct was a spontaneous and excessive reaction to the provocation of having a drink thrown at her, and that she had not fully comprehended that she was holding a glass bottle — having just been handed it by another person. Neither party sought a custodial sentence; the prosecution was not opposed to a good behaviour bond, and defence sought that no conviction be recorded. The exchange between the Magistrate and prosecutor led defence counsel to believe that the central contested issue was whether a conviction should be recorded at all, not whether imprisonment was appropriate. The Magistrate nonetheless sentenced Geelen to 2 months and 21 days’ imprisonment, suspended on a 12-month good behaviour bond of $500, on the factual basis that she had thrown the bottle in retaliation for a drink being spilled on her — a characterisation that omitted any reference to Geelen not knowing she held a bottle and that differed meaningfully from the agreed spontaneous-reaction narrative.
Geelen appealed to the Supreme Court of South Australia on four grounds: (1) the Magistrate sentenced on a factually incorrect or different basis without notice; (2) inadequate reasons were given for recording a conviction and imposing imprisonment; (3) submissions were effectively confined to the conviction question, denying procedural fairness on the imprisonment issue; and (4) the sentence was manifestly excessive. On appeal, the respondent (Commissioner of Police) also tendered CCTV footage of the incident that had not been before the Magistrate.
The Court’s Holding
Justice Gray allowed the appeal on grounds 1 and 3 and remitted the matter to the Magistrates Court. As a threshold matter, the Court received the CCTV footage as “further evidence” under s 42(4) of the Magistrates Court Act 1991 (SA), applying the broader interest-of-justice standard that governs such appeals rather than the more restrictive fresh-evidence test for Court of Appeal proceedings. Although the footage was not determinative, it provided important context for evaluating the parties’ competing submissions about the factual basis of the plea.
On procedural fairness, Gray J held that the concept is practical rather than abstract — the concern of the law is to avoid practical injustice. Three cumulative failures were identified: the Magistrate sentenced on a factual basis (bare retaliation) that differed from the agreed basis (spontaneous excessive reaction by a person who did not realise she held a bottle), without putting the parties on notice; defence counsel reasonably understood from the Magistrate’s remarks that imprisonment was not under active consideration and therefore did not address it; and defence counsel failed to make explicit that the reference to R v Stubberfield was intended to raise excessive self-defence. When considered together in the context of a busy Magistrates Court list, these matters amounted to a denial of procedural fairness causing the sentencing process to miscarry.
Applying the materiality test from LPDT v Minister for Immigration [2024] HCA 12 — whether the decision could realistically have been different absent the error — the Court was satisfied that the lost opportunity to make submissions on imprisonment and on the correct factual basis could have affected the outcome. The Court emphasised that where a prosecutor’s concession is not to be acted upon, the court must notify the offender and afford an opportunity to respond, consistent with DL v The Queen (2018) 265 CLR 215. Grounds 2 and 4 were not addressed.
Key Takeaways
- A sentencing court is not bound by an agreed factual basis or prosecutorial concessions, but if it intends to depart from either, it must notify the parties and afford them an opportunity to make further submissions before doing so.
- Where the conduct of proceedings reasonably leads defence counsel to believe that a particular sentencing option (here, imprisonment) is off the table, proceeding to impose that option without warning constitutes a denial of procedural fairness.
- On a s 42 Magistrates Court Act 1991 (SA) appeal, the power to receive further evidence is broader than the fresh-evidence standard applied in the Court of Appeal; the overriding consideration is the interests of justice, and the parties’ diligence (or lack thereof) is relevant but not determinative.
- Procedural fairness failures need not each be independently sufficient; courts assess their cumulative effect in the practical context in which the hearing occurred.
Why It Matters
This decision reinforces that the procedural fairness obligations on sentencing courts are not merely formal. Even in busy Magistrates Court lists — where economic sentencing remarks are commonplace and proceedings move quickly — a judge who contemplates departing from the agreed factual basis or from a prosecutorial concession bears an obligation to say so and to give the defence a genuine opportunity to respond. The failure to do so, particularly where the departure directly influences the decision to impose imprisonment, will ordinarily be a miscarriage of justice regardless of whether the sentence might ultimately be upheld on the merits.
The case also offers useful guidance on the admission of audiovisual evidence on appeal under s 42(4) of the Magistrates Court Act 1991 (SA), confirming that the statute’s reference to “fresh evidence” should be read broadly as “further evidence” and that the Court retains a flexible discretion to admit material that serves the interests of justice — even where the evidence was available but not tendered below.