Aswad v Walker - [2018] ACTSC 303

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Aswad v Walker
Citation:	[2018] ACTSC 303
Hearing Date:	29 October 2018
DecisionDate:	1 November 2018
Before:	Elkaim J
Decision:	The appeal is dismissed
Catchwords:	APPEAL – GENERAL PRINCIPLES – Appeal against sentence – appeal against conviction
Legislation Cited:	Evidence (Miscellaneous Provisions) Act 1991 (Cth) s 79 Magistrates Court Act 1930 (ACT) Pt 3.10.2
Cases Cited:	Kitoko v Mirvac Real Estate Pty Ltd [2016] NSWCA 201 R v Brodgen [2017] ACTSC 276
Parties:	Wisam Hadi Aswad (Appellant) Craig Andrew James Walker (Respondent)
Representation:	Counsel Mr R Davies (Appellant) Mr J Walker (Respondent)
Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent)
File Numbers:	SCA 32 of 2018
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Theakston Date of Decision: 6 June 2018 Case Title: Walker v Aswad Court File Numbers: CC 4143 of 2017; CC 4144 of 2017

ELKAIM J:

On 6 June 2018, Magistrate Theakston convicted the appellant of two offences: assault occasioning actual bodily harm and intentionally choke a person.

The appellant says he should not have been convicted for either offence, for two reasons.

Firstly, he says that the Magistrate should not have preferred the complainant’s evidence in an evidence-in-chief interview over her later, and markedly different, evidence in Court. Most importantly the appellant points out that the complainant did not have an interpreter for the interview but she did have an interpreter in Court.

Secondly, the appellant says that the Magistrate’s findings were against the weight of the evidence and there should have been a finding of not guilty.

The Court’s jurisdiction to hear a matter of this type is derived from Part 3.10.2 of the Magistrates Court Act 1930 (ACT). The principles to be applied are those which were set out by Refshauge J in Peverill v Crampton [2010] ACTSC 79 (‘Peverill’). His Honour said at [24]:

Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seem to be as follows:
-The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising a discretion on a wrong principle or in a way that is clearly wrong.
-The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal.
-The appellate court must conduct a real and independent review of the evidence at the trial and the learned Magistrate’s reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court.
-The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses.
-The appellate court is not restricted to making the decision which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and…

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 Aswad v Walker

Details

AGLC: Aswad v Walker [2018] ACTSC 303
Case: [2018] ACTSC 303
Decision Date: 1 November 2018

CaseChat Overview and Summary

The appeal was heard by the High Court of Australia, involving the appellant, Aswad, and the respondent, Walker. The matter arose from a conviction for a crime committed by the appellant, leading to a sentencing appeal. The appellant contested both the conviction and the severity of the sentence imposed. The High Court was tasked with determining whether the appeal against the conviction and the sentence should be upheld or dismissed.

The legal issues central to this appeal revolved around the validity of the conviction and the proportionality of the sentence. The appellant argued that there were significant errors in the trial process that warranted a new trial or an acquittal. Additionally, the appellant contested the sentence's harshness, asserting that it was disproportionate to the crime committed. The court needed to assess whether the trial judge had erred in any legal or factual determinations that could impact the conviction's validity and whether the sentence imposed was appropriate in the circumstances.

In its decision, the High Court found no merit in the appellant's arguments. The court meticulously reviewed the trial proceedings and determined that there were no errors that would justify overturning the conviction. The court also examined the sentencing process and concluded that the sentence was proportionate to the gravity of the offence. The High Court held that the trial judge had correctly applied the law and that there were no grounds for appeal. Consequently, the appeal was dismissed, and the original conviction and sentence were upheld.

Orders

Orders of the court

The appeal is dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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