GEELEN v POLICE [2026] SASC 83

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE WICKENS) MCCRM-23-039247 Appellant: DANIELLE SARA GEELEN Counsel: MR A GRAHAM - Solicitor: CALDICOTT AND ISAACS LAWYERS Respondent: COMMISSIONER OF POLICE Counsel: MS T WARD - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 24/10/2025 File No/s: SCCRM-25-009201 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. GEELEN v POLICE [2026] SASC 83 Judgment of the Honourable Justice Gray 3 June 2026 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT CRIMINAL LAW - SENTENCING - PROCEDURE - FACTUAL BASIS FOR PLEA OF GUILTY APPEAL AND NEW TRIAL - PROCEDURE - NEW TRIAL - RECEPTION OF FURTHER EVIDENCE This is an appeal against sentence imposed in the Magistrates Court following a plea of guilty to an offence of aggravated assault causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA). The circumstance of aggravation was that the appellant used, or threatened to use, an offensive weapon, namely a glass bottle, in the commission of the offence. The offence was committed on 18 June 2023 at a nightclub in Adelaide. Following an altercation on the dance floor, the appellant threw the contents of her drink, including a glass bottle, at the complainant, causing injury including damage to the complainant’s front teeth. The appellant was sentenced to imprisonment for 2 months and 21 days, suspended upon entry into a bond to be of good behaviour for 12 months in the sum of $500. The appellant pursues four grounds of appeal, contending: (1) the sentencing process miscarried because the learned Magistrate did not sentence on the correct factual basis or, in the alternative, because defence counsel failed properly to articulate the intended factual basis of sentence, and further the appellant was denied procedural fairness by the learned Magistrate sentencing on a different basis from that advanced by both prosecution and defence, without notice; (2) the learned Magistrate gave inadequate reasons for recording a conviction and for imposing a term of imprisonment; (3) the appellant was denied procedural fairness by the learned Magistrate effectively confining submissions to the question of whether a conviction should be recorded; and (4) that the sentence was manifestly excessive. -- 1 of 12 -- Held, allowing the appeal on grounds 1 and 3, and remitting the matter to the Magistrates Court: (1) It is in the interests of justice that the CCTV footage of the incident be received as further evidence on appeal. Whilst not determinative of the outcome, the footage provides an important context within which the submissions concerning the factual basis of the plea may be properly understood. [15] (2) Procedural fairness is a practical concept. The concern of the law is to avoid practical injustice. To establish that the sentencing process miscarried on the grounds of a denial of procedural fairness, the appellant must demonstrate a deprivation of the opportunity to advance submissions so as to result in unfairness. Considering all relevant matters that threshold is met in this case. The loss of the opportunity to make further submissions concerning imprisonment and the factual basis of the plea could have had an impact upon the sentencing outcome. [30]-[31], [34]-[39] Criminal Law Consolidation Act 1935 (SA) s 20(4); Magistrates Court Act 1991 (SA) ss 42, 42(4), referred to. House v The King (1936) 55 CLR 499; R v Dorning (1981) 27 SASR 481, applied. DL v The Queen (2018) 265 CLR 215; HT v The Queen (2019) 269 CLR 403; Kioa v West (1985) 159 CLR 550; Lennon v The Queen (2017) 80 MVR 71; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, (2024) 280 CLR 321; Malvaso v The Queen (1989) 168 CLR 227; Manuel v Police [2010] SASC 169; Pantorno v The Queen (1989) 166 CLR 466; Police (SA) v Chilton [2014] SASCFC 76, (2014) 120 SASR 32; R v Horstmann [2010] SASC 103, (2010) 269 LSJS 42; R v McIntee (1985) 38 SASR 432; R v Nemer (2003) 87 SASR 168; R v Stubberfield [2010] SASC 9; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, considered. -- 2 of 12 -- GEELEN v POLICE [2026] SASC 83 Criminal: Magistrates Appeal 1 GRAY J: This matter concerns an appeal against a sentence imposed on 28 February 2025 in the Magistrates Court in respect of the appellant, Danielle Geelen, for an offence of aggravated assault causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA). The circumstance of aggravation was that the appellant used, or threatened to use, an offensive weapon, namely a glass bottle, in the commission of the offence. 2 The offence was committed on 18 June 2023 at Mary’s Poppin, a nightclub, in Adelaide. The complainant was a nightclub patron. The offending occurred on the dancefloor after an altercation which ended by the appellant throwing the contents of her drink, including the glass bottle, at the complainant, causing injury, including damage to the complainant’s front teeth. The appellant entered a plea of guilty to the offence and was sentenced to imprisonment for 2 months and 21 days, suspended upon entrance into a bond to be of good behaviour for 12 months in the sum of $500. 3 The notice of appeal to this Court raises the following grounds:1 1. The sentencing process miscarried by reason of: a. The Magistrate not sentencing on the correct factual basis, or in the alternative; b. By reason of defence counsel failing to articulate properly the intended factual basis of sentence; c. The appellant was denied procedural fairness by the Magistrate sentencing on a different basis [than that] advanced by both defence and prosecution without notice. 2. The sentencing Magistrate gave inadequate reasons for: a. Recording a conviction; b. Imposing a term of imprisonment. 3. The appellant was denied procedural fairness by the Magistrate effectively confining submissions to whether a conviction should be recorded. 4. The sentence was manifestly excessive. 1 Danielle Sarah Geelen, ‘Notice of Appeal’, SCCRM-25-009201, 11 March 2025 (FDN 1) (‘Notice of Appeal’) and Danielle Sarah Geelen, ‘Amended Appeal Grounds’, SCCRM-25-009201, 12 November 2025 (FDN 26) (‘Amended Appeal Grounds’). -- 3 of 12 -- [2026] SASC 83 Gray J 2 4 The appellant contends that both process and outcome errors affected the sentence and seeks remittal of the matter to the Magistrates Court to resolve the disputed factual basis for the plea.2 5 The respondent’s primary position is that the sentence is not affected by error. In the alternative, the respondent’s position is that the sentence remains appropriate notwithstanding a mistake as to the factual basis, and the appellant ought not be resentenced.3 In the event that this Court finds that the factual basis was erroneous by reference to the way in which it was resolved, which I take to be a reference to the procedural fairness ground advanced in ground 3, the respondent appears to accept that the appropriate remedy is remittal for a disputed facts hearing.4 Statutory basis of the appeal and relevant principles 6 This appeal is governed by s 42 of the Magistrates Court Act 1991 (SA) and is by way of rehearing.5 To interfere with the exercise of a sentencing discretion, there must be demonstrated error of the kind described in House v The King.6 7 In Police (SA) v Chilton,7 Kourakis CJ observed that the sentence imposed by a magistrate can only be set aside for error in accordance with House v The King. Kourakis CJ held:8 The twin mischiefs which this Court must avoid in sentencing appeals are, on the one hand, too readily imagining error in the interstices of the necessarily economic sentencing remarks of busy Magistrates and, on the other, too readily excusing error as a merely infelicitous expression of no consequence. The mischiefs can be avoided by fidelity to, and a rigorous application of, the prescript in House v The King. 8 In House v The King it was held:9 It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the 2 Transcript of Proceedings, Geelen v Police (SA) (Supreme Court of South Australia, SCCRM-25- 009201, Gray J, 24 October 2025) at T16.3-7.5 (‘AT’). 3 AT 41.7-18. 4 AT 47.1-10 (the submission concerned ground 3, as it was then articulated). 5 Joint Criminal Rules 2022 (SA) r 191.1. 6 House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5 (Dixon, Evatt and McTiernan JJ) (‘House v The King’). 7 Police (SA) v Chilton [2014] SASCFC 76; (2014) 120 SASR 32 (Kourakis CJ, David J agreeing). 8 Police (SA) v Chilton [2014] SASCFC 76; (2014) 120 SASR 32 at 38 [19] (Kourakis CJ, David J agreeing). 9 House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ). -- 4 of 12 -- [2026] SASC 83 Gray J 3 exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. 9 Thus, House v The King identifies the nature of a process error and that of an outcome error.10 An application for leave to adduce fresh evidence on appeal 10 Section 42(4) of the Magistrates Court Act 1991 (SA) permits fresh evidence to be adduced on appeal where it is in the interests of justice to do so. 11 The respondent submitted that this Court ought receive, on appeal, the CCTV recording of the altercation. The appellant did not object to the tender of the CCTV recording but noted that the recording was not tendered before the learned Magistrate. 12 The test for admission of fresh evidence on appeal was stated by the Full Court of this Court in R v Dorning.11 The Court held:12 In order to justify the reception of fresh evidence three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that if given, it would probably have an important influence on the result of the case, although it need not be decisive; third, the evidence must be apparently credible, but the Full Court will not necessarily decide whether the witness from whom the new evidence is sought is telling the truth. (citations omitted) 13 The rule concerning admission of fresh evidence should not be applied to the extent that it would frustrate, rather than serve, the interests of justice.13 The test for admission of fresh evidence under s 42 of the Magistrates Court Act 1991 (SA) is broader than the test for an appeal to the Court of Appeal. In Manuel v Police,14 Kourakis J (as his Honour then was) held:15 In my view the power of the Court to receive evidence pursuant to s 42 of the Magistrates Court Act 1991 is wide. Even though s 42 uses the words “fresh evidence”, in my view that term should be understood in its context as further evidence. The restrictive approach taken to the receipt of fresh evidence on motions for new trials should not be applied to the statutory power conferred by s 42 of the Magistrates Court Act 1991. In the exercise of the discretion given by that provision, this Court must balance the interests of the public in the finality of litigation against the interests of justice in the particular case. The diligence, or lack thereof, of the parties and their legal representatives are relevant considerations. They are, however, not determinative. (citations omitted) 10 R v Horstmann [2010] SASC 103; (2010) 269 LSJS 42 at 50 [37]-[38] (Kourakis J). 11 R v Dorning (1981) 27 SASR 481 (Walters, Zelling and Williams JJ). 12 R v Dorning (1981) 27 SASR 481 at 485-6 (Walters, Zelling and Williams JJ). 13 R v McIntee (1985) 38 SASR 432 at 435 (King CJ, Zelling and Bollen JJ agreeing). 14 Manuel v Police [2010] SASC 169 (‘Manuel v Police’), 15 Manuel v Police [2010] SASC 169 at [28] (Kourakis J). -- 5 of 12 -- [2026] SASC 83 Gray J 4 14 Both the appellant and respondent characterised the CCTV recording as ‘further’ as opposed to ‘fresh’ evidence.16 The appellant maintained that the CCTV recording, as it was not before the learned Magistrate, could not sustain the submission advanced by the respondent to the effect that the learned Magistrate sentenced the appellant upon a factual basis that was open to him. 15 I consider that it is in the interests of justice that the CCTV footage be received in this case. Whilst, for the reasons articulated below, the receipt of the CCTV is not ultimately determinative of the outcome of this appeal, it nonetheless provides an important context within which the parties’ submissions concerning the factual basis of the plea may be properly understood. Procedural fairness Grounds 1 and 3 16 Ground 1 complains that the learned Magistrate erred in not sentencing on the correct factual basis, or in the alternative by reason of defence counsel failing to articulate properly the intended factual basis of the sentence. Further it is said that the appellant was denied procedural fairness by the Magistrate sentencing on a different basis than that advanced by both defence and prosecution without notice. Ground 3 makes a procedural fairness complaint concerning the confining of submissions to the question of recording a conviction. 17 To address these grounds, it is necessary to consider the manner in which the matter proceeded in the Magistrates Court. The parties filed a number of affidavits which articulated the basis of the plea negotiations, and the submissions made before the learned Magistrate. The parties also filed an agreed transcript of the proceedings.17 I have considered that material, the further material received on this appeal, and the submissions of the parties. 18 It is clear from the transcript that the prosecutor put forward an agreed factual basis that included “the assault was in fact a spontaneous excessive reaction... to the complainant throwing a drink”.18 The submissions also included reference to Ms Geelen not fully comprehending what was in her hand at the time. The police prosecutor submitted that the prosecution was not opposed to a good behaviour bond and that a conviction was appropriate.19 19 The defence sought that no conviction be recorded. Further, defence submitted that the factual basis was that what occurred was a spontaneous and excessive reaction to the complainant throwing a drink, and then there was a perceived push and strike from Ms Geelen. Defence then submitted that the case 16 Manuel v Police [2010] SASC 169 (Kourakis J). 17 Agreed Transcript of Proceedings (‘Exhibit A3’). 18 Exhibit A3 at 1. 19 Ibid. -- 6 of 12 -- [2026] SASC 83 Gray J 5 before the learned Magistrate was on all fours with the decision in R v Stubberfield.20 20 The learned Magistrate remarked as follows: [T]he victim in this matter, Ms Blight, was on the dance floor in the company with friends and you were also on the dance floor as well. Both yourself and the victim in the matter had consumed alcoholic beverages and had beverages in your hands at the time of the incident. A brief altercation occurred where Ms Blight threw the contents of her drink at yourself. This was in response to a drink being spilled upon her and her mistakenly believing that you were the person who did it, and that it was with intention. In response you threw the entire contents of your beverage, including the glass bottle, at Ms Blight. The bottle struck Ms Blight in the face and the impact caused her teeth to be fractured. 21 The complaint advanced on appeal is that defence had instructions to agree to the plea on the basis that Ms Geelen had struck the victim with a bottle for defensive purposes. Ms Geelen accepted that her conduct in doing so was excessive and therefore did not amount to self-defence.21 Defence counsel, who appeared in the Magistrates Court, acknowledged in his affidavit filed on this appeal that he did not use the words excessive self-defence. It is submitted on appeal that the reference in the Court below to this case being on all fours with the decision in Stubberfield was meant by defence counsel to convey that the assault was intended to be defensive. The prosecutor contends in his affidavit that he was not aware that excessive self-defence was being considered in relation to Ms Geelen’s offending. An express reference to excessive self-defence does not appear on the agreed transcript.22 22 Whatever may have been the intention of each counsel appearing in the Court below, I consider that the learned Magistrate proceeded on a different factual basis than that which was put by both the prosecution and the defence. That is, the prosecutor put the factual basis as being “the assault was in fact a spontaneous excessive reaction… to the complainant throwing a drink”.23 The learned Magistrate referred to the throwing of the drink including the bottle as being in response to a drink being spilt on the appellant. The submissions by prosecution also included reference to Ms Geelen not fully comprehending what was in her hand at the time.24 There was no reference to this by the learned Magistrate. 23 In effect, the appellant submits that the learned Magistrate sentenced the appellant on the factual basis that the appellant struck the victim in retaliation for a drink being spilled upon her. In contrast, the factual basis of the plea, put forward 20 R v Stubberfield [2010] SASC 9; Danielle Sarah Geelan, ‘Affidavit of Andrew Ey’, SCCRM-25- 009201, 03 October 2025, at 6 (FDN 13); Agreed Transcript of Proceedings (Exhibit A3). Agreed. 21 Danielle Sarah Geelan, ‘Affidavit of Andrew Ey’, SCCRM-25-009201, 03 October 2025, Exhibit A2 (FDN 13) (‘Affidavit of Andrew Ey’). 22 Commissioner of Police, ‘Affidavit of Joshua Hamish Newman’, SCCRM-25-009201, 8 October 2025 (FDN 20). 23 Defence agreed in submissions with the factual basis put by the prosecution, see Affidavit of Andrew Ey (n 21) at 6; Agreed Transcription of Proceedings (Exhibit A3). 24 AT 39.11-14. -- 7 of 12 -- [2026] SASC 83 Gray J 6 by both the prosecution and the defence, was that the appellant exhibited a spontaneous and excessive reaction. Further, the prosecutor submitted that Ms Geelen had not fully comprehended that she had a bottle in her hand, having just been passed the bottle by another person. 24 It is not in dispute between the parties that it was open to the learned Magistrate to sentence on a different factual basis than the factual basis agreed between the parties. However, the complaint concerning the denial of procedural fairness is that if the learned Magistrate sought to sentence on a different factual basis than that put by the parties, then, given the context in which this matter proceeded, the learned Magistrate was required to articulate this to the parties.25 25 A similar complaint is advanced in relation to the learned Magistrate’s decision to impose a custodial sentence. The submission advanced is that in circumstances where neither party had sought a custodial sentence and in the context of the following exchange between the prosecution and the learned Magistrate, defence counsel was led to believe that it was appropriate to direct submissions primarily to the question of whether a conviction should be recorded, and not to the question of the imposition of a custodial sentence. The relevant exchange between the prosecutor and the learned Magistrate is as follows: Prosecution … the prosecution, the prosecution’s attitude … has changed slightly in that we are not opposed to a good behaviour bond should your Honour be satisfied that that is appropriate. Magistrate What do you say about conviction? Prosecution Your Honour Magistrate The real nub of this. I think that’s where the argument is going to lie. 26 The affidavit of Mr Ey, who appeared as counsel for Ms Geelen in the Magistrates Court, indicates to the effect that the above exchange led him not to address the issue of whether a sentence of imprisonment should be imposed. Mr Ey outlines the nature of the submissions that he would have made as to why imprisonment was not warranted in the circumstances of this case, had he been aware that imprisonment was being considered.26 27 The respondent submits on this appeal that the sentencing process involves a balancing of a myriad of considerations, and the exercise of judgement in the context of all relevant matters.27 The respondent points to the learned Magistrate’s sentencing discretion not being confined by any agreement between the parties as 25 Danielle Sarah Geelen, ‘Second Written Submissions of the Appellant’, SCCRM-25-009201, 07 October 2025. 26 Danielle Sarah Geelan, ‘Affidavit of Andrew Ey’, SCCRM-25-009201, 03 October 2025, at [10] (FDN 13). 27 Commissioner of Police, ‘Supplementary Written Submissions of the Respondent’, SCCRM-25- 009201, at [44] (FDN 19); Lennon v The Queen (2017) 80 MVR 71 at [22]-[23] (Weinberg JA, Santamaria JA, Judd AJA). -- 8 of 12 -- [2026] SASC 83 Gray J 7 to the appropriate range of sentence, including by reason of any concessions made by the prosecutor.28 As was set out by Bell, Keane, Nettle, Gordon and Edelman JJ in DL v The Queen that:29 …Notwithstanding the adversarial nature of criminal proceedings, the public interest in the sentencing of offenders is such that the sentencing judge (or the appellate court in the case of re-sentencing) is not constrained by any agreement between the parties as to the appropriate range of sentence or by concessions made by the prosecutor. Where, however, the judge (or the appellate court in the case of re-sentencing) is minded not to act on a concession made by the prosecution, the failure to put the offender on notice of that inclination and give him or her an opportunity to deal with the matter by evidence or submissions will ordinarily be a miscarriage of justice. In the absence of such an indication, it will be reasonable for the offender to conduct his or her case upon the understanding that the concession will be accepted and acted upon by the court. It was an error to hold that the appellant had had ample opportunity to be heard on all aspects of his appeal. The respondent refers to the sentencing obligation being to formulate a sentence on the basis of the material before the Court.30 28 The respondent refers to the prosecutor’s submission that “the prosecution’s attitude ...has changed slightly in that we are not opposed to a good behaviour bond should your Honour be satisfied that that is appropriate” as being a qualified concession. This concession is said by the respondent on appeal not to suggest what penalty should be imposed, but to express one potentially appropriate outcome.31 The respondent refers to the learned Magistrate as not being bound by this concession, and to this concession not confining the appellant’s submissions as to an appropriate penalty. 32 29 The respondent contends that the appellant was afforded the opportunity to make submissions on sentence and did make fulsome submissions such that there was no denial of procedural fairness.33 Further, the respondent submits that if there was a denial of procedural fairness, the sentence was in any event appropriate and no less severe sentence is warranted. Consideration 30 There is a common law duty to act fairly, in terms of according procedural fairness. Procedural fairness is a practical construct. As Gleeson CJ held in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam:34 28 R v Nemer (2003) 87 SASR 168 at [7] (Doyle CJ). 29 (2018) 265 CLR 215 at [39]. 30 R v Nemer (2003) 87 SASR 168 at [40]; Malvaso v The Queen (1989) 168 CLR 227 at [14] (Mason CJ, Brennan & Gaudron JJ). 31 Commissioner of Police, ‘Supplementary Written Submissions of the Respondent’, SCCRM-25- 009201, at [45] (FDN 19). 32 Ibid. 33 AT 45.10-46.23. 34 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at 13-14 [37]. -- 9 of 12 -- [2026] SASC 83 Gray J 8 …Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. 31 Procedural fairness is required during criminal proceedings, including in the context of imposing sentence.35 The important question arising on this appeal is, what does the duty to act fairly require in the circumstances of this particular case.36 For the appellant to succeed in establishing that the sentencing process miscarried on the grounds of a denial of procedural fairness, she must demonstrate that she was deprived of the opportunity to advance submissions so as to result in unfairness.37 32 It follows that it is relevant to consider whether defence counsel had the opportunity to address on all aspects of Ms Geelen’s case. 33 I accept that with the benefit of hindsight it would have been better had defence counsel clarified whether the learned Magistrate was considering imprisonment as a sentencing option. I also accept that it would have been better had defence counsel clearly articulated the basis of the plea being that his client acted with circumstances of excessive self-defence, and for defence counsel to have articulated the reasons for the reference to Stubberfield. However, this matter proceeded in the context of a busy Magistrates Court list, in circumstances where the learned Magistrate had identified the central issue as being whether a conviction should be recorded. 34 I find that there are three aspects of the sentencing process which, when considered together, and viewed in the context of the manner in which the matter proceeded in a busy Magistrates Court list, indicate that the appellant was denied procedural fairness such that the sentencing process miscarried. These are: a. First, the factual basis upon which the learned Magistrate sentenced was not the factual basis agreed by the parties, and the parties were not afforded the opportunity to address on the factual basis upon which the learned Magistrate proposed to sentence. b. Second, defence made submissions on the basis that defence counsel considered, based upon the exchange between the prosecutor and the learned Magistrate, that it was unnecessary to address the question of whether imprisonment was appropriate. c. Third, defence counsel failed to make it explicit that reliance was being placed upon the decision in Stubberfield so as to advance a submission that the appellant was acting in a defensive manner. 35 Pantorno v R (1989) 166 CLR 466 at 473-4 [11]-[12], 483 [12]; HT v The Queen (2019) 269 CLR 403. 36 Kioa v West (1985) 159 CLR 550. 37 (2003) 214 CLR 1 at 13-14 [29]-[34] (Gleeson CJ). -- 10 of 12 -- [2026] SASC 83 Gray J 9 35 Having regard to the totality of the transcript of the hearing, and having listened to the audio recording of the hearing, I consider that there was a denial of procedural fairness to the appellant in that the appellant was not on notice that the learned Magistrate was considering imprisonment and did not have the benefit of her counsel addressing the learned Magistrate on that issue. In addition, defence counsel did not have the opportunity to consider and address the factual basis upon which the learned Magistrate ultimately sentenced. Further, it is now apparent that there was a difference between what was understood by prosecution and defence to be the agreed factual basis. I would not necessarily be persuaded that this third matter considered alone would amount to a denial of procedural fairness.38 I note, however, that I do not need to consider that matter in isolation for the purposes of this appeal. Procedural fairness is a practical construct to be considered in context considering all circumstances together. When this matter is considered together with other matters, appellate intervention is required. The fact that defence counsel intended and now seeks to make a submission concerning excessive self-defence, informs the appropriate consequential orders that I propose to make and which I discuss below. 36 When considering whether there was a material effect consequent upon defence counsel not making submissions concerning imprisonment, or further submissions concerning the proposed factual basis of the plea, it should be recognised that the question is:39 Whether the decision that was in fact made could, not would, “realistically” have been different had there been no error. “Realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous. 37 In the context of this case the threshold to be met by the appellant is not high. As the High Court held in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs:40 … Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is "no easy task" for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. 38 The reason that I have some doubt as to whether this matter alone would require appellate intervention is because defence counsel did have the opportunity to address on this issue, and the manner in which the hearing was conducted did not prevent such submissions being advanced. Further, it is not readily apparent considering the context of this matter that this matter alone could have affected the outcome. 39 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [14] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). 40 (2024) 280 CLR 321; [2024] HCA 12 at [15] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). -- 11 of 12 -- [2026] SASC 83 Gray J 10 38 I consider that the relevant threshold has been met in this case. The accepted evidence of Mr Ey is that had he been aware that imprisonment was being considered, or had he been aware that it was in dispute as to whether his client acted either in self-defence or spontaneously,41 he would have made further submissions about these and other matters.42 I am satisfied that the loss of that opportunity could have had an impact upon the sentencing outcome. 39 Ultimately, I am persuaded in the particular circumstances of this case, by reference to the transcript and the specific manner in which the matter proceeded in the Magistrates Court, that there was practical injustice occasioned to the appellant. 40 It follows that I would allow the appeal on grounds 1 and 3. It is unnecessary for me to address grounds 2 and 4. Conclusion 41 The affidavits and the submissions advanced by the parties on this appeal, indicate that although the prosecution counsel appearing in the Court below and defence counsel in that Court both separately believed at the time of the submissions before the learned Magistrate that the factual basis of the plea was agreed, it is now apparent that each counsel held a different view as to what was agreed. The effect of this is that a disputed facts hearing is now sought. Both parties accepted that if there was to be a disputed facts hearing then the matter should be remitted to the Magistrates Court. I therefore make the following orders: 1. The appeal is allowed. 2. The matter is remitted to the Magistrates Court. 42 I will hear the parties as to any other orders. 41 Affidavit of Andrew Ey (n 21). 42 See further, Affidavit of Andrew Ey (n 21) at [11]. -- 12 of 12 --