Bennett v Bacon
[2008] WASC 192
•28 AUGUST 2008
BENNETT -v- BACON [2008] WASC 192
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 192 | |
| Case No: | SJA:1013/2008 | 28 AUGUST 2008 | |
| Coram: | McKECHNIE J | 28/08/08 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed New trial ordered | ||
| B | |||
| PDF Version |
| Parties: | JOHN REGINALD BENNETT LIAM ALAN BACON |
Catchwords: | Criminal law Burden and standard of proof Courts and judges No reference to standard of proof |
Legislation: | Nil |
Case References: | AK v The State of Western Australia [2008] HCA 8, (2008) 243 ALR 409 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
LIAM ALAN BACON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE B A LANE
File No : PE 55417 of 2007
Catchwords:
Criminal law - Burden and standard of proof - Courts and judges - No reference to standard of proof
Legislation:
Nil
(Page 2)
Result:
Appeal allowed
New trial ordered
Category: B
Representation:
Counsel:
Appellant : Mr W R Richardson
Respondent : Ms J C Pritchard
Solicitors:
Appellant : Frichot & Frichot
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
AK v The State of Western Australia [2008] HCA 8, (2008) 243 ALR 409
(Page 3)
1 McKECHNIE J: Mr Bennett is a man of mature years, gone 65. He runs the Glenvale Lodge. Mr Talbot was employed by Mr Bennett as a bookkeeper at the lodge. On 24 August 2007, Mr Talbot had been working at the lodge for four months and was going to finish up. He and Mr Bennett had a dispute over holiday pay. Mr Talbot alleged that things got physical and Mr Bennett punched him in the face. He went to the police, was photographed, and in due course Mr Bennett stood trial on a charge of assaulting a person over the age of 60.
2 There were only two witnesses of significance - Mr Talbot and Mr Bennett.
3 Mr Talbot's evidence was as I have outlined. Mr Bennett's evidence was that as Mr Talbot left, he flicked his hand at Mr Bennett and hit him on the side of the face.
4 In her reasons the magistrate came to the opinion that both of them were angry. She said:
In relation to the matter, I've heard the evidence of both witnesses and had the opportunity to assess them in the witness box and I have heard cross-examination by the prosecutor and the accused counsel in relation to the matter. Now, I find that Mr Talbot did not swipe at Mr Bennett. I find that Mr Bennett did punch Mr Talbot in the face. (ts 34)
5 She found there was no justification for that punch.
Inadequate reasons
6 The magistrate's reasons were seriously inadequate. She failed to mention the burden and standard of proof. Mentioning them is not a mere incantation. The fact that a judicial officer correctly directs their attention to the burden and standard of proof does not wave a magic wand over inadequate reasons and make them sufficient.
7 However, the absence of any mention of the burden and standard of proof will almost certainly result in a reversal on appeal.
8 This is so for a number of reasons. First, there is a statutory duty to identify the law the court has applied in coming to its decision and give the reasons for doing so: Magistrates Court Act 2004 (WA) s 31(1)(b). Secondly, unless a judicial officer states the law, an appellate court is reduced to assumptions or guesses that the magistrate actually knew or, more relevantly, applied the appropriate law.
(Page 4)
9 In the present case, even if such an assumption was permissible, and it is not, it could not be made, because shortly before giving her reasons the magistrate said to Mr Bennett's then counsel:
[I]n terms of the submissions, really, what you should really be saying is that there's only two witnesses that I need to take into account, Mr Talbot and Mr Bennett. In terms of the prosecution's submission is that I should prefer the evidence of Mr Talbot, in terms of your submission, that I prefer the evidence of Mr Bennett because they're the only two witnesses who have come to court. The police officer didn't see anything. All he is doing is proving the photograph. (ts 32)
10 Ms Pritchard has gamely attempted to defend the magistrate's comments, but necessarily is reduced to do so by paraphrase and assumption because the magistrate, whose duty it was to find facts and state the law, did not do so. The statement that I have just quoted is a fundamental misstatement of the law. It is not a question of preference of evidence. The magistrate was required to be satisfied beyond reasonable doubt on the evidence of Mr Talbot in a case which is oath upon oath and where Mr Bennett's evidence is neither inherently incredible or implausible. In those circumstances the magistrate had a duty to state the law that she was applying and also to apply it by giving sufficient reasons as to why, in the circumstances I have outlined, she was nevertheless able to be satisfied beyond reasonable doubt.
11 If reference to authority is necessary for the basic principle I have just outlined it is gathered together in AK v The State of Western Australia [2008] HCA 8, (2008) 243 ALR 409.
12 The prosecution tendered two photographs of Mr Talbot's face which appear to indicate injuries which may be consistent with his account and inconsistent with the account of Mr Bennett, especially as Mr Bennett testified that he did not see any marks on Mr Talbot's face afterward.
13 Counsel has argued that the magistrate in fact took these photographs into account, but what the magistrate in fact did was simply summarise the evidence, pointing out that there were only two witnesses. She then said:
The police officer who gave evidence simply gave evidence as a matter of identifying the photograph as part of his running sheet and part of the file that he received in relation to the investigation. There were no other independent witnesses who were called to give evidence, even though there could have been.
(Page 5)
14 That was merely a summary of the police officer's evidence which, while a correct summary, was done in the context that the magistrate could put it to one side. I am not satisfied, because she did not mention it, that she used the photographs in any way. She may have done. Who knows?
15 Grounds 1 and 3 are made out and the appeal must succeed on those grounds. Counsel for the appellant this morning has withdrawn ground 2.
Conclusion
16 The appeal is allowed and the conviction quashed, and the matter remitted to the Magistrates Court to be heard and determined by a different magistrate.
17 Costs adjourned to chambers if not agreed.
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