B v Smith - [2006] WASC 253

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: B -v- SMITH [2006] WASC 253

CORAM: JENKINS J

HEARD: 23 OCTOBER 2006

DELIVERED : 7 NOVEMBER 2006

FILE NO/S: SJA 1078 of 2006

MATTER :Criminal Appeals Act 2004, Pt 2

BETWEEN: B
Appellant
AND
GRANT ALAN SMITH
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES' COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE W G TARR
File No  :PE 15713 of 2006

Catchwords:

Criminal law - Appeal against conviction for assault - Adequacy of Magistrate's reasons

Legislation:

Criminal Appeals Act 2004 (WA), s 14(2)
Criminal Code Act 1902 (WA), s 313(1)(a)
Evidence Act 1906 (WA), s 25(1), s 25(2), s 25(3)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr J R Ludlow
Respondent: Ms K Y Loh

Solicitors:

Appellant: Kitto & Kitto
Respondent: State Solicitor's Office

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

Abalos v Australian Postal Commission (1990) 171 CLR 167
Devries v Australian National Railways Commission (1993) 177 CLR 472
Gardner v Caporn [2005] WASCA 153

Case(s) also cited:

Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53
CSR Ltd v Della Maddalena (2006) 224 ALR 1
Fox v Percy (2003) 214 CLR 118
Garrett v Nicholson (1999) 21 WAR 226
Glennon v The Queen (1994) 179 CLR 1
Hajinoor v Dench [2005] WASC 274
Harling v Hall (1997) 94 A Crim R 437
Jones v Hyde (1989) 85 ALR 23
M v The Queen (1994) 181 CLR 487
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149
Skerritt v O'Keefe [1999] WASCA 183

JENKINS J:

The decision under appeal

The appellant appeals from his conviction on Prosecution Notice No PE 15713 of 2006 which alleged that on 2 February 2006 he unlawfully assaulted the complainant under circumstances of aggravation, namely in the presence of a child contrary to the Criminal Code Act 1902 (WA) ("the Code"), s 313(1)(a).
On 29 June 2006 a Magistrate sitting in the Magistrates Court at Perth found the charge proven, imposed a conditional release order in the sum of $500 for nine months and made a spent conviction order.
On appeal, the appellant contends that the Magistrate erred in finding the charge proven. I dismiss the appeal.

Grounds of appeal

There are nine grounds of appeal. In summary, the grounds of appeal are that the Magistrate erred in fact and/or law by:
1reciting but failing to assess or give any weight to the appellant's evidence;
2failing to give reasons for not accepting the appellant's evidence;
3failing to give reasons for giving full weight to the evidence of Ms Souter, aside from her independence, when Ms Souter's evidence was in part contradicted by all other prosecution and defence evidence (there are three particulars of this ground);
4gave undue weight to Ms Souter's evidence in circumstances wherein her evidence was distinct from the evidence of the other prosecution witnesses, in the areas set out in appeal ground 3 above;
5failing to assess, or give any…

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 B v Smith

Details

AGLC: B v Smith [2006] WASC 253
Case: [2006] WASC 253
Decision Date: 7 NOVEMBER 2006

CaseChat Overview and Summary

The appellant, B, appealed against his conviction for assault. The appeal was heard in the Supreme Court of South Australia. The primary issue before the court was whether the magistrate's reasons for convicting B were adequate, and whether this inadequacy led to a miscarriage of justice. The secondary issue was whether the conviction should be quashed on the basis that the magistrate's reasons did not include consideration of all the evidence.

The court held that the magistrate's reasons were sufficient and did not lead to a miscarriage of justice. The court found that the magistrate had properly considered the evidence and the legal principles applicable to the case. The court also held that the magistrate's reasons did not need to include consideration of every piece of evidence, but rather a summary of the evidence that was sufficient to allow the court to understand the basis of the decision. The court found that the magistrate's reasons were adequate in this regard.

The appeal was dismissed. The court held that the magistrate's reasons were adequate and did not lead to a miscarriage of justice. The court found that the magistrate had properly considered the evidence and the legal principles applicable to the case, and that the reasons were sufficient to allow the court to understand the basis of the decision. The conviction was therefore upheld.

Orders