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Betts v Hardcastle

Betts v Hardcastle

Case [2001] WASCA 35 16 February 2001

Appeal

Evidence of Accomplice

Type to search within this case.

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL
CITATION	:	BETTS -v- HARDCASTLE [2001] WASCA 35

CORAM

: ROBERTS-SMITH J

HEARD

: 5 FEBRUARY 2001

DELIVERED

: 16 FEBRUARY 2001

FILE NO/S

:	SJA 1198 of 2000 SJA 1212 of 2000

BETWEEN

: WAYNE STEWART BETTS

Appellant
AND
JOHN DEREK HARDCASTLE
Respondent

Catchwords:

Criminal law - Evidence of accomplice - Summary jurisdiction - Need for corroboration warning

Criminal Law - Reasons for decision - Need to advert to warning about evidence of accomplice

Criminal law - Corroboration of evidence of accomplice - Lies as corroboration

Criminal law - Stealing motorcycle - Sentence - Immediate imprisonment - First offender - Whether should have been suspended

Legislation:

Evidence Act 1906 (WA), s50

[2001] WASCA 35

Result:

Appeal against conviction dismissed
Appeal against sentence allowed
Sentence of 12 months imprisonment quashed

Sentence of 12 months imprisonment to be suspended for 2 years substituted

Representation:

Counsel:

Appellant	:	Mr R A Mazza
Respondent	:	Ms S L Melvold

Solicitors:

Appellant	:	Martella & Co
Respondent	:	State Director of Public Prosecutions

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

Boyle v The Queen, unreported; CCA SCt of WA; Library No 980125; 24

March 1998

Brown v The Queen, unreported; FCt SCt of WA; Library No 6028; 3 October

1985

Butun v The Queen, unreported; CCA SCt of WA; Library No 8717; 15

February 1991

Carlson v King (1947) 64 WN (NSW) 65
Cook v The Queen (2000) 110 A Crim R 117
Dinsdale v The Queen (2000) 74 ALJR 1538
Edwards v The Queen (1993) 178 CLR 193
Fleming v The Queen (1998) 197 CLR 250
Garrett v Nicholson (1999) 21 WAR 226

Honeybone v The Queen, unreported; CCA SCt of WA; Library No 960437; 7

June 1996

Khan v The Queen [1971] WAR 44
Lam v Beesley (1992) 7 WAR 88
Lloyd v Faraone [1989] WAR 154
Longman v The Queen (1989) 168 CLR 79
Nevermann (1989) 43 A Crim R 347

Pallot v Harrison, unreported; SCt of WA (Owen J); Library No 950261; 12

May 1995

[2001] WASCA 35

Pettitt v Dunkley [1971] 1 NSWLR 376
R v Baskerville [1916] 2 KB 658 at 665
R v Lucas [1981] 1 QB 720
R v Small (1994) 33 NSWLR 575
Ridley v Whipp (1916) 22 CLR 381
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Stojkovski v Fitzgerald [1989] WAR 328
Tumahole Bereng v The Queen [1949] App Cas 253

Zheng v The Queen (1995) 83 A Crim R 572

Case(s) also cited:

Nil

[2001] WASCA 35

ROBERTS-SMITH J

ROBERTS-SMITH J: By leave granted by Scott J on 27 October 2000, the appellant appeals against a sentence of 12 months imprisonment imposed upon him in the Harvey Court of Petty Sessions on 16 October 2000 following his conviction of an offence that between 14 and 16 July 1999 at Cookernup, he stole a 650cc Kawasaki motor cycle HH7706 valued at $2000, the property of one Dominic James O'Neil, contrary to s 378 of…

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 Betts v Hardcastle

Details

AGLC: Betts v Hardcastle [2001] WASCA 35
Case: [2001] WASCA 35
Decision Date: 16 FEBRUARY 2001

CaseChat Overview and Summary

The case of Betts v Hardcastle involved the appellant, Betts, appealing against both his conviction and sentence for stealing a motorcycle. The trial was conducted in the Magistrates’ Court of South Australia. The primary dispute was whether the trial magistrate correctly applied the law regarding the need for a corroboration warning when considering the evidence of an accomplice and whether the sentence imposed was appropriate.

The legal issues before the court were twofold. First, it was necessary to determine whether the trial magistrate was required to provide a warning about the need for corroboration when relying on the evidence of an accomplice. Second, the court had to assess whether the sentence imposed on the appellant was just and appropriate given his status as a first offender.

In addressing these issues, the court found that the trial magistrate did not err in failing to provide a specific warning about the need for corroboration, as the evidence presented, including the lies told by the accomplice, provided sufficient corroboration. The court held that the magistrate’s failure to give a specific warning did not prejudice the appellant's right to a fair trial. Regarding the sentence, the court determined that the imposition of immediate imprisonment was inappropriate for a first offender. The sentence was deemed to be excessive and disproportionate, warranting a substitution for a suspended sentence.

Consequently, the appeal against the conviction was dismissed, while the appeal against the sentence was allowed. The original sentence of 12 months imprisonment was quashed and replaced with a sentence of 12 months imprisonment, to be suspended for two years.

Orders

Orders of the court

Appeal against conviction dismissed

Appeal against sentence allowed

Sentence of 12 months imprisonment quashed

Sentence of 12 months imprisonment to be suspended for 2 years substituted

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

Betts v Hardcastle [2001] WASCA 35

Most Recent Citation

Makeham v Sheppard [2020] VSCA 242

Cases Citing This Decision

Makeham v Sheppard [2020] VSCA 242
Citation 1

…ions Act 2015 s 4A — Perkins v The County Court of Victoria 2 VR 246; Ta v Thompson (2013) 46 VR 10; Betts v Hardcastle (2001) 23 WAR 559; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 considered.…
Manonai v Burns [2011] WASCA 165
Citation 2 (Para 3)

…334 ‑ 335, 340; Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226, 236 ‑ 238 (Pidgeon J), (248 ‑ 249) (Owen J); Betts v Hardcastle [2001] WASCA 35; (2001) 23 WAR 559, 569; Bennett v Carruthers [2010] WASCA 131.…
Giles v Douglas [2011] WASC 14
Citation 3 (Para 5)

…WAR 328, 334, 335, 340; Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226, 236 - 238 (Pidgeon J), 248 - 249 (Owen J); and Betts v Hardcastle [2001] WASCA 35; (2001) 23 WAR 559, 569. In Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525 Steytler P said [32]: 'While it is true that overl…
Bennett v Carruthers [2010] WASC 5
Citation 4 (Para 3)

…334, 335, 340; Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226, 236 ‑ 238 (Pidgeon J), 248 ‑ 249 (Owen J); and Betts v Hardcastle [2001] WASCA 35; (2001) 23 WAR 559, 569.…
Omodei v The State of Western Australia [2006] WASC 210
Citation 5

…1 Qd R 45 R v Lamb [1967] QB 981 R v O'Halloran [1967] Qd R 1 R v Taktak (1988) 14 NSWLR 226 The State of Western Australia v Newland [2005] WADC 125 Betts v Hardcastle (2001) WAR 559 Hajinoor v Dench [2005] WASC 274 Pallot v Harrison, unreported; SCt of WA; Library No 950261; 12 May 1995 R v Lavender (2005) 222 CLR 67 Weis…
Chang v Turner [2005] WASC 246
Citation 6

…Nicholson (1999) 21 WAR 226 GFS v The Queen [2001] WASCA 219 Lloyd v Faraone [1989] WAR 154 Lowndes v The Queen (1999) 195 CLR 665 Betts v Hardcastle (2001) 23 WAR 559 Dicks v Farrell [2001] WASCA 124 Nevermann (1989) 43 A Crim R 347 O'Sullivan v Farrer (1989) 168 CLR 210 R v Gardiner (No 3) (2000) 24 SR (WA) 136 R…
Munday v Jensen [2004] TASSC 129
Citation 7 (Para 1)

…n it applies, also requires magistrates to treat the evidence of accomplices similarly: McNee v Kay [1953] VLR 520 at 533 – 534; Betts v Hardcastle (2001) 23 WAR 559.…
D & B v L [2004] WASCA 116
Citation 8

…Betts v Hardcastle (2001) 23 WAR 559 In the Marriage of D v Y (1995) FLC 92-581 Re Watson; Ex parte Armstrong (1976) 136 CLR 248 In the Marriage of Harris & Caladine (1991) 172 CLR 84 In the Marriage of Rice & Asplund (1979) FLC 90-725…
Donnachy v Riegert [2004] WASCA 48
Citation 9

…Betts v Hardcastle (2001) 23 WAR 559 Chinnery v Hansen (2001) 125 A Crim R 426 Cross v Cook [2001] WASCA 242 Dietrich v The Queen (1992) 177 CLR 292 Fernando v Keady, unreported; SCt of WA; Library No 940135; 4 March 1994 Furtak v Timmers [2001] WASCA 65 Griekspoor v Scott (2000) 23 WAR 530 Jones v Williams, unrepor…
Gardner v Caporn [2004] WASCA 14
Citation 10

…Abalos v Australian Postal Commission (1990) 171 CLR 167 Betts v Hardcastle [2001] WASCA 35 Calvetti v Warner, unreported; SCt of WA (Owen J); Library No 8960; 4 July 1991 Chew v The Queen (1991) 4 WAR 21 Harling v Hall (1997) 94 A Crim R 437 Krakouer v Durka [2003] WASCA 141 M v R (1998) 104 A Crim R 154 Marwey v…
Campbell v Logan [2003] WASCA 89
Citation 11 (Para 1)

…appeal and for an appeal court to adequately adjudicate an appeal if instituted. I referred to a number of relevant authorities in Betts v Hardcastle (2001) 23 WAR 559 at 569 ‑ 571, and I adopt here without repeating, what I said there (see also Garrett v Nicholson (1999) 21 WAR 226 at [31]).…
Prior v Kemp [2001] WASCA 363
Citation 12

…Betts v Hardcastle (2001) 23 WAR 559 Kind v The Queen (1996) 88 A Crim R 150 Masciantonio v The Queen (1995) 183 CLR 58 Monaco v Arnedo Pty Ltd (1994) 13 WAR 522 Pantorno v The Queen (1989) 166 CLR 466 Stingel v The Queen (1990) 171 CLR 312 Verhoeven v The Queen (1998) 101 A Crim R 24 Zoccoli v McDarby [1999] WASCA…

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Cases Cited

Zheng v The Queen [2015] NZCA 369
Citation 1

…Zheng v The Queen (1995) 83 A Crim R 572…
Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53
Citation 2 (Para 2)

…mine whether or not there is any ground of appeal and for an Appeal Court to adequately adjudicate any appeal if instituted: Pettitt v Dunkley [1971] 1 NSWLR 376, 382-390; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 256-9, 268-274, 277-8; Lloyd v Faraone [1989] WAR 154, 162-4; Stojkovski v Fi…
Dinsdale v The Queen [2000] HCA 54
Citation 3 (Para 1)

…However, in light of the High Court decision in Dinsdale v The Queen (2000) 74 ALJR 1538, I think his Worship's sentencing discretion did miscarry in relation to the question of suspended sentence.…
Cook v The Queen [2000] WASCA 78
Citation 4

…Carlson v King (1947) 64 WN (NSW) 65 Cook v The Queen (2000) 110 A Crim R 117 Dinsdale v The Queen (2000) 74 ALJR 1538 Edwards v The Queen (1993) 178 CLR 193 Fleming v The Queen (1998) 197 CLR 250 Garrett v Nicholson (1999) 21 WAR 226…
Fleming v The Queen [1998] HCA 68
Citation 5 (Para 3)

…In Fleming v The Queen (1998) 197 CLR 250, the High Court had to consider the obligation on a trial Judge sitting without a jury, to give reasons for a verdict. The accused had been indicted on three charges of aggravated indecent assault upon a 15 year old girl and one charge of sexual intercourse with that girl as a person…
R v Small [1998] QCA 380
Citation 6 (Para 2)

…It has been said that use of lies as corroboration is unusual, as Hunt CJ at CL said in R v Small (1994) 33 NSWLR 575 at 597 and is fraught with the risk of miscarriage for they inevitably provide potent (and potentially prejudicial) support for the prosecution case.…
Edwards v The Queen [1993] HCA 63
Citation 7 (Para 4)

…s contention was that the learned Magistrate failed to approach the question of lies in accordance with the law as established in Edwards v The Queen (1993) 178 CLR 193 and that in any event the lies relied on did not meet the criteria which would enable them to be relied on as implicit admissions of guilt and hence…
Longman v The Queen [1989] HCA 60
Citation 8 (Para 3)

…ant had to be scrutinised with great care before a conclusion was arrived at and a verdict of guilty returned, in accordance with Longman v The Queen (1989) 168 CLR 79 at 107. The only reference in his Honour's reasons for decision to this was a statement that: "The Crown case relies solely upon the complainant. If…
Ridley v Whipp [1916] HCA 76
Citation 9

…Pettitt v Dunkley [1971] 1 NSWLR 376 R v Baskerville [1916] 2 KB 658 at 665 R v Lucas [1981] 1 QB 720 R v Small (1994) 33 NSWLR 575 Ridley v Whipp (1916) 22 CLR 381 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Stojkovski v Fitzgerald [1989] WAR 328 Tumahole Bereng v The Queen [1949] App Cas 253…
Loughnan v Altman [1992] FCA 985
Citation 10 (Para 2)

…In Lam v Beesley (1992) 7 WAR 88, Owen J said (at 93) that the question of depriving a litigant of the opportunity he may have had on appeal extends beyond a complete absence of reasons and includes a situation where there is uncertainty as to the reasons upon which the finding is based. But the realities of press…
[1999] WASCA 32 [1999] WASCA 32
Citation 11 (Para 2)

…NSWLR 247 at 256-9, 268-274, 277-8; Lloyd v Faraone [1989] WAR 154, 162-4; Stojkovski v Fitzgerald [1989] WAR 328, 334, 335, 340; Garrett v Nicholson (1999) 21 WAR 226 per Pidgeon J at 236-238 and Owen J at 248-9; Nevermann (1989) 43 A Crim R 347.…
[1916] 2 KB 658 [1916] 2 KB 658
Citation 12 (Para 1)

…ms in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it.": R v Baskerville [1916] 2 KB 658 at 665.…
[1981] 1 QB 720 [1981] 1 QB 720
Citation 13 (Para 5)

…As a matter of law, lies by an accused may be capable of constituting corroboration of the evidence of an accomplice: R v Lucas [1981] 1 QB 720. In that case Lord Lane CJ held that before false out of court statements can amount to corroboration, they must satisfy four tests ( ibid at 724): "To be capable of amoun…
[1949] App Cas 253 [1949] App Cas 253
Citation 14 (Para 1)

…e corroborated an accomplice merely by giving evidence which is not accepted and must therefore be regarded as false (see Tumahole Bereng v The Queen [1949] App Cas 253 per Lord Dermott at 270). Nor is it a case in which proof of the acts about which the appellant lied depends on the acceptance of the prosecution wit…
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24
Citation 15 (Para 2)

…ere is any ground of appeal and for an Appeal Court to adequately adjudicate any appeal if instituted: Pettitt v Dunkley [1971] 1 NSWLR 376, 382-390; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 256-9, 268-274, 277-8; Lloyd v Faraone [1989] WAR 154, 162-4; Stojkovski v Fitzgerald [1989] WAR 328, 334, 335, 340; Garrett v Nichol…

Legislation Cited

Evidence Act 1906 (WA) 50
2 mentions (from Para 3)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 1)
Infant Protection Act 1904 (NSW)
1 mention (from Para 3)