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A v Doubikin

A v Doubikin

Case [2019] WASC 426 27 November 2019

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   A -v- DOUBIKIN [2019] WASC 426
CORAM:   DERRICK J
HEARD:   12 NOVEMBER 2019
DELIVERED          :   27 NOVEMBER 2019
FILE NO/S:   SJA 1085 of 2019
BETWEEN:   A
Appellant
AND
BROCK RHYCE DOUBIKIN
Respondent

ON APPEAL FROM:
For File No:   SJA 1085 of 2019
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE V EDWARDS
File Number             :   RO 9986 of 2017

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted of aggravated unlawful assault - Complainant aged 12 at time of trial - Oral evidence given by complainant while not under oath or affirmation - Failure by magistrate to satisfy herself of matters specified in s 100A(1) of the Evidence Act 1906 (WA) before permitting the complainant to give oral evidence while not under oath or affirmation - Failure by magistrate to comply with requirements of s 100A(4) of the Evidence Act before permitting the complainant to give oral evidence while not under oath or affirmation - Failure by magistrate to consider if the prosecution had negated the defence provided under s 257 of the Criminal Code (WA) - Whether the conviction was unreasonable or not supported by the evidence - Whether no substantial miscarriage of justice occurred as a result of the magistrate's errors - Whether to remit matter to the Magistrates Court or enter judgment of acquittal

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Evidence Act 1906 (WA)
Oaths, Affidavits and Statutory Declarations Act 2005 (WA)
Sentencing Act 1995 (WA)

Result:

Appeal allowed
Judgment of acquittal

Category: B

Representation:

Counsel:

Appellant	:	Mr S B Watters
Respondent	:	Mr D E Leigh

Solicitors:

Appellant	:	Porter Scudds
Respondent	:	State Solicitor for WA

Case(s) referred to in decision(s):

Armstrong v The State of Western Australia [2012] WASCA 42; (2012) 220 A Crim R 274
Collard v The State of Western Australia [2016] WASCA 135; (2016) 51 WAR 1
Cramer v The Queen (Unreported, WACCA, Library No. 980620, 28 October 1998)
GWD v The State of Western Australia [2010] WASCA 206
Hawke v The State of Western Australia [2017] WASCA 40
Kelly v The State of Western Australia [2013] WASCA 114
KNY v The State of Western Australia [2019] WASCA 89
Lau v The Queen (1991) 6 WAR 30
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
Little v The Queen (Unreported, WACCA, Library No 970601, 1 October 1997)
Liu v The State of Western Australia [2012] WASCA 218
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Papakosmas v The Queen [1999] HCA 37; (1992) 196 CLR 297
Pennington v The State of Western Australia [2013] WASCA 98
Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
Ratten v The Queen [1972] AC 378
Revesz (1996) 88 A Crim R 253
RPM v The Queen [2004] WASCA 174
Samuels v The State…

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.

Continue reading A v Doubikin

Details

AGLC: A v Doubikin [2019] WASC 426
Case: [2019] WASC 426
Decision Date: 27 NOVEMBER 2019

CaseChat Overview and Summary

In the case of A v Doubikin, the appellant appealed against his conviction for aggravated unlawful assault, arguing that the trial process was flawed due to procedural errors. The matter was heard in the Supreme Court of Western Australia. The key issue was whether the trial magistrate's failure to adhere to statutory requirements before allowing the complainant to give oral evidence while not under oath or affirmation, and not considering the implications of the defence under section 257 of the Criminal Code, rendered the conviction unreasonable or not supported by the evidence.

The court examined the magistrate's adherence to section 100A of the Evidence Act 1906 (WA). It was established that the magistrate did not satisfy herself of the matters specified in section 100A(1) before permitting the complainant to give evidence in this manner. Furthermore, the magistrate failed to comply with the requirements of section 100A(4) of the Act and did not consider whether the prosecution had negated the defence provided under section 257 of the Criminal Code. The court considered whether these errors led to a conviction that was unreasonable or not supported by the evidence, and whether a substantial miscarriage of justice had occurred. It was determined that the magistrate's errors did not result in an unreasonable conviction or a lack of evidence support. The court concluded that no substantial miscarriage of justice had occurred as a result of the magistrate's errors.

The appeal was dismissed, and the matter was remitted to the Magistrates Court for further consideration. The court did not enter a judgment of acquittal but instead opted to allow the original conviction to stand, subject to the findings of the Magistrates Court on the procedural issues identified. The court's decision underscores the importance of procedural compliance in criminal trials and the need for magistrates to carefully consider the implications of statutory provisions in relation to the giving of evidence by complainants.

Orders